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Grain Inspection, Packers and Stockyards Administration, USDA.
Final rule.
The Department of Agriculture's Grain Inspection, Packers and Stockyards Administration (GIPSA) is amending the regulations issued under the Packers and Stockyards P&S Act, 1921, as amended, (7 U.S.C. 181
The amendments to the regulations will require that live poultry dealers timely deliver a copy of an offered poultry growing arrangement to growers; include information about any Performance Improvement Plans (PIP) in poultry growing arrangements; include provisions for written termination notices in poultry growing arrangements; and notwithstanding a confidentiality provision, allow growers to discuss the terms of poultry growing arrangements with designated individuals.
S. Brett Offutt, Director, Policy and Litigation Division, P&SP, GIPSA, 1400 Independence Ave., SW., Washington, DC 20250, (202) 720–7363,
As the Grain Inspection, Packers and Stockyards Administration (GIPSA), one of our functions is the enforcement of the Packers and Stockyards Act of 1921, as amended. Under authority granted to us by the Secretary of Agriculture (Secretary), we are authorized (7 U.S.C. 228) to make those regulations necessary to carry out the provisions of the P&S Act. Section 201.100 of the regulations (9 CFR 201.100) specifies the terms of the poultry growing arrangement that must be disclosed to poultry growers by poultry companies.
We believe that the failure to disclose certain terms in a poultry growing arrangement constitutes an unfair, discriminatory, or deceptive practice in violation of section 202 (7 U.S.C. 192) of the P&S Act.
It is common knowledge in the industry that because of vertical integration and high concentration, live poultry dealers normally present poultry growers with poultry growing arrangements on a “take it or leave it” basis. The poultry growers do not realistically have the option of negotiating more favorable poultry growing arrangement terms with another live poultry dealer because there may be no other live poultry dealers in the poultry grower's immediate geographic area or there may be significant differences in equipment requirements among live poultry dealers. There is considerable asymmetry of information and an imbalance in market power. Growers sometimes do not know or understand the full content of their own poultry growing arrangement with the poultry companies and are constrained by confidentiality clauses from discussing their poultry growing arrangement with business advisers. This final rule ensures that all poultry growers are fully informed and can make sound business decisions prior to entering into a poultry growing arrangement with a live poultry dealer. In addition, growers often have much of their net worth invested in poultry houses, which have limited value for purposes other than raising and caring for poultry. At the same time, live poultry dealers may have a staff of accountants, economists, attorneys and other business advisors whose job is to perform market research and advise the live poultry dealers' management on how poultry growing arrangements with poultry growers should be structured to protect the live poultry dealers' financial interests. Growers who have invested heavily in poultry houses may face the choice of signing a poultry growing arrangements in which disclosure of terms is incomplete and/or not provided in a timely fashion or facing financial difficulties, including possibly exiting the poultry growing business or going bankrupt. In some cases, live poultry dealers already provide complete information in a timely fashion. This final rule, however, will level the playing field by requiring that all live poultry dealers adopt fair and transparent practices when dealing with poultry growers.
The failure of a live poultry dealer to deliver a written poultry growing arrangement in a timely manner is considered by GIPSA to be an unfair and deceptive practice because growers could not otherwise know what the poultry growing arrangement terms will be or whether the terms accurately reflect the agreement reached between the parties. This practice could also be considered discriminatory if some growers receive written poultry growing arrangements in a timely fashion and others do not. A live poultry dealer's failure to include written notice of termination procedures in the poultry growing arrangement and failure to provide a written notice of termination is also considered unfair, discriminatory and deceptive for the same reasons.
A live poultry dealer's failure to include information about Performance Improvement Plans (PIPs) is similarly unfair and discriminatory if some growers receive this information and others do not, and deceptive if growers are unaware that such a program exists until they fail to meet a minimum performance threshold that was not specified in their poultry growing arrangement.
GIPSA considers prohibiting growers from discussing poultry growing arrangement terms with business advisers unfair because growers are not typically attorneys or accountants. Depriving growers of professional advice before they commit to a poultry growing arrangement, particularly when the live poultry dealers have access to such advice in drafting their poultry growing arrangements, is considered unfair as well.
The market for poultry is vertically integrated and highly concentrated. For example, USDA–GIPSA reported in
Live poultry dealers accept much of the short term financial risk. Poultry growers take the longer term financial risk by investing in the poultry houses and equipment. Live poultry dealers often use a tournament or bonus compensation system in which poultry growers compete with each other over a given period of time. Growers, who in the opinion of the live poultry dealer consistently underperform, may be placed on a PIP, have their current poultry growing arrangement terminated, or not be offered a new poultry growing arrangement or have their existing poultry growing arrangement extended.
The current contracting process may involve verbal agreements that are made prior to delivery of a written poultry growing arrangement. The process by which new poultry growers are recruited can be informal word-of-mouth, although some poultry companies solicit new growers via their Web site. Prospective poultry growers must have a line of credit sufficient to finance the construction of poultry houses in order to be a successful applicant. A live poultry dealer typically inspects a prospective grower's property to verify that the grower has sufficient space and suitable soil conditions on which to place the houses, has right of way capable of supporting truck traffic, and has means to dispose of dead birds and bird waste. The discussion between a live poultry dealer and prospective poultry growers to verify these conditions often involves verbal commitments, and therefore growers may not have a comprehensive grasp of all their rights and obligations. Likewise, growers with existing poultry growing arrangements may make similar verbal commitments for poultry house improvements to the live poultry dealer. Currently, a poultry grower may receive specifications for the poultry houses from a live poultry dealer and use those specifications to obtain a construction loan from a lender prior to receiving a written poultry growing arrangement from the poultry company. While most new growers typically receive written poultry growing arrangements at about the same time they receive the specifications for the poultry houses, some live poultry dealers do not provide growers with written poultry growing arrangements until after construction of the poultry houses has already started.
The regulations issued under the P&S Act currently protect poultry growers by requiring that the poultry growing arrangement include, for example, the per unit charges for feed and other inputs furnished by each party, the duration of the poultry growing arrangement and conditions for its termination, and the factors to be used when grouping or ranking poultry growers.
The requirements contained in this final rule are intended to help both poultry growers and live poultry dealers by providing the growers with more information about the poultry growing arrangement at an earlier stage. This final rule will “level the playing field” by requiring live poultry dealers to include these provisions in all poultry growing arrangements. Growers will have more information upon which to decide whether to accept the terms of the poultry growing arrangement. Growers will benefit from a freer flow of information and better pricing efficiencies because they are able to discuss the terms of their poultry growing arrangement with business and financial professionals before committing to building or upgrading poultry houses. With these requirements, poultry growers will be informed of the criteria used to place them on a PIP. Live poultry dealers will benefit from having growers who better understand the obligations of their poultry growing arrangement and benefit further by having more specific contract language to resolve performance issues and the termination of their poultry growing arrangements.
GIPSA published a Notice of Proposed Rulemaking in the
We received 237 postcards containing identical comments from poultry growers. While all of these commenters supported adoption of the four amendments in the proposed rule, six commenters added wording of their own in the margins of the postcards. Three of the six written comments referenced housing specification requirements and two commenters suggested that we extend the duration of poultry growing arrangements for longer periods than typically stated in existing poultry growing arrangements. Because these issues are not raised in the four amendments in our proposal, we are making no change to the final rule based on these five comments.
We received 92 letters containing identically worded comments from individuals identifying themselves as “taxpayer(s).” All comments were in support of the proposed rule, and made no suggestions for modifying the proposal.
We received 82 identical comments advocating:
• Expanding the phrase “business advisor” as used in the proposed rule, to include appraisers, realtors or other growers for the same company,
• Adding a provision prohibiting live poultry dealers from adding riders to poultry growing arrangements or otherwise changing the terms of poultry growing arrangements after the grower “sees the first [poultry growing arrangement],”
• Prohibiting the placing of growers on PIPs for factors beyond their control,
• Requiring poultry growing arrangements to include information regarding the financial consequences of placement on PIPs, and
• Requiring that live poultry dealers give poultry growers at least 180 days written notice of termination.
We received 38 additional comments from individuals and trade associations which varied in their response to our proposed amendments. These 120 additional comments are discussed below.
As stated above, commenters advocated expanding the phrase “business advisor” as used in proposed
We see no benefit for a live poultry dealer to forbid its growers from discussing the terms of their poultry growing arrangements with each other. To do so would impede the growers' ability to determine whether they have been treated unfairly or discriminated against in violation of the P&S Act. We will therefore include poultry growers who have entered into poultry growing arrangements with the same live poultry dealer in the final rule based on the comment received.
One commenter suggested that we add family members, banks and anyone on a need-to-know basis to the list of “business advisors” in proposed § 201.100(b). Another suggested that we allow growers to discuss their contracts with attorneys and farmer organizations. Section 10503 of the Farm Security and Investment Act of 2002 (7 U.S.C. 229b) clearly sets forth that a party to the poultry growing arrangement shall not be prohibited from discussing any terms or details of the poultry growing arrangement with: (1) A Federal or State agency; (2) a legal advisor to the party; (3) a lender to the party; (4) an accountant hired by the party; (5) an executive or manager of the party; (6) a landlord of the party; or (7) a member of the immediate family of the party. We believe that, with the exception of farmer organizations and poultry growers who have entered into poultry growing arrangements with the same live poultry dealer, the groups enumerated in the proposed regulation encompass those named by the commenters. While we are not including farmer organizations in the final rule, we are adding poultry growers who have entered into poultry growing arrangements with the same live poultry dealer. The remaining individuals and groups named in the regulation reflect those named in the statute. We consider “Immediate family” to means an individual's father, mother, stepfather, stepmother, brother, sister, stepbrother, stepsister, son, daughter, stepson, stepdaughter, grandparent, grandson, granddaughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, the spouse of the foregoing, and the individual's spouse in accordance with the definition under the Federal crop insurance program, administered by USDA's Farm Service Agency.
Commenters suggested that we add a provision to proposed § 201.100(a) to prohibit live poultry dealers from adding riders to poultry growing arrangements or otherwise changing the terms of poultry growing arrangements after the grower “sees the first one.” We believe that the switching of poultry growing arrangements after the grower “sees the first one” is not a common problem in the poultry industry. The final rule, however, will require that live poultry dealers give growers a “true written copy” of the offered poultry growing arrangement. Some poultry growing arrangements are flock-to-flock agreements. A true written copy of a poultry growing arrangement must cover the production of at least one flock. If a live poultry dealer makes changes to the original poultry growing arrangement, or substitutes a new poultry growing arrangement for the “true written copy” that was provided at the same time as the house specifications, but prior to picking up a new grower's first flock, there is a basis for questioning whether the original poultry growing arrangement is the “true written copy” of the parties' agreement. Based on the above analysis of these comments, we believe that no change to the final rule is necessary.
A comment received from a poultry grower organization requested that we require a live poultry dealer to disclose fully the existence (or the lack thereof) of the company's PIP program in its poultry growing arrangements. A comment filed by another suggested that all original poultry growing arrangements disclose fully a live poultry dealer's PIP information. The commenter stated that a live poultry dealer should not be able to add riders containing PIP clauses to existing poultry growing arrangements. We have reviewed our proposal and agree with the comments. We will therefore modify § 201.100(c) in the final rule to require that a live poultry dealer specifically disclose in all future poultry growing arrangements whether it has a PIP program in existence and the guidelines for the program.
Commenters advocated prohibiting live poultry dealers from placing growers on PIPs for factors beyond their control. We acknowledge that all growers run the risk of having a flock perform poorly for reasons they may not control. We have found that placement on a PIP, however, generally does not occur unless a grower performs poorly over an extended period of time. If a poultry grower believes a live poultry dealer systematically has manipulated inputs to the grower's disadvantage, GIPSA can investigate the grower's complaint. However, prohibiting live poultry dealers from placing growers on PIPs because of factors beyond the control of growers is vague and could result in both growers and live poultry dealers being uncertain of when PIPs are justified, and are so subjective that GIPSA might be asked to investigate every PIP placement made. Moreover, it is impractical for us to attempt to list every possible factor not under the control of growers that could negatively affect performance. We are therefore making no change to § 201.100(c) in the final rule based on these comments.
Comments received recommended that we require that live poultry dealers state in their poultry growing arrangements the financial impact poultry growers would face if placed on a PIP. We have found that live poultry dealers often place smaller flocks on the farms of poultry growers on PIPs. This may allow these growers to manage a flock more easily and efficiently. Poultry growers on PIPs may experience other adjustments to normal practices intended to help them prepare fully for raising and caring for poultry. These changes, while helping to improve performance, may reduce payouts to PIP growers. We believe that poultry growers need to know what changes to normal practices will occur when placed on a PIP so they may better judge how placement on a PIP will affect them.
One association commented that advanced notice of termination would be especially problematic and impractical to implement for growers on PIPs. In most cases, they said, the decision to terminate a grower could not be made until the last flock had been picked up, processed and the results analyzed. This rule would allow the live poultry dealer to follow through on the PIP, including picking up and processing the flock before making a decision regarding whether the grower met the conditions of the PIP. If the grower did not meet the conditions of the PIP, the live poultry dealer would then provide notice of termination. The notification that the grower did not meet the PIP and the termination notice would be sent at the same time. Allowing a live poultry dealer to provide written termination notices to a grower on a PIP after picking up the last flock would not allow the PIP grower sufficient time to establish business relationships with other live poultry dealers. GIPSA believes poultry growers on PIPs should receive advance written notice of termination in the same
Commenters requested that we modify our proposal to require that poultry growers receive written notice of termination at least 180 days in advance of the date the termination would be effective. The majority of the comments submitted recommended that poultry growers receive a minimum of 180 days written termination notice. Another commenter wrote that he/she typically receives only 10 days notice of termination, but the commenter did not specifically suggest what the minimum number of days should be. The minimum number of days of advance written notice of termination recommended by other commenters ranged from 30 days to 2 years. Lastly, one commenter recommended that we prohibit the termination of poultry growing arrangements for growers with federally guaranteed loans.
Most poultry growing arrangements contain clauses that state that the live poultry dealer will provide written notice of termination to growers. We have found in most cases that these clauses provide a minimum number of days advance notice of termination that a grower will receive under the poultry growing arrangement. The minimum number of days varies from 3 to 30 days prior to picking up the final flock, or prior to the anticipated delivery date for the next flock.
The majority of comments to the notice of proposed rulemaking indicate 30 days advance notice of termination is insufficient to allow poultry grower's time to make other business arrangements. The majority of the commenters recommended that we change the time period for requiring advance written notice of termination from 30 days to 180 days. On review, we agree that 30 days is not sufficient enough time to provide an opportunity for a live poultry dealer or grower to make business adjustments. However, we believe that 180 days is too long and may be a burden on the party that intends to terminate the agreement. In reviewing the concerns raised by the comments that advocated the 180 day period, we believe that 90 days advance written notice of termination should be adequate in order to give the affected parties time to make adjustments in their business operations. This is especially important given the long-term financial risks that an affected party may face. This change will provide the grower with more time to work with the live poultry dealer to improve his/her performance, obtain legal and/or financial advice or guidance, obtain a new contract with a new live poultry dealer, and/or sell his/her poultry growing business. We are therefore changing § 201.100(h) in the final rule based on the comments discussed above to require that written termination notices be provided by one party to the other at least 90 days prior to the effective date of termination of the poultry growing arrangement.
Many commenters suggested that we expand the requirements for written termination notices to include situations in which a live poultry dealer discontinues an existing poultry growing arrangement, or elects not to renew or replace an expiring poultry growing arrangement. The commenters said that the requirement for written termination notices should encompass all situations where one party ends the poultry growing relationship. In our reviews of agreements, we have found that poultry growing arrangements have a set duration, such as 1-year or flock-to-flock. We believe that our proposed amendment works well in situations where one party chooses to end the poultry growing arrangement before the termination date noted in the arrangement. A live poultry dealer could also end its relationship with a grower by simply allowing a poultry growing arrangement to expire without renewal or offer of replacement. A live poultry dealer may also discontinue the use of an established poultry growing arrangement and offer a different agreement in its place—one that the poultry grower may or may not accept. Requiring written notice of termination in all situations where one party elects to end the poultry growing relationship would ensure that a grower is informed when termination is imminent no matter what manner or reason is used for termination. Under these circumstances, we will modify § 201.100(h) in the final rule to require written notice of termination in instances of a poultry growing arrangement's termination, expiration, non-renewal and non-replacement.
Many commenters recommended that we remove language referencing “pen and paper” in proposed § 201.100(h). The commenters believe that the reference to “pen and paper” is confusing and that the term “written” is sufficient. We agree with the commenters that the phrase could be confusing and will modify the amendment in the final rule to delete the phrase “pen and paper.”
Commenters also urged GIPSA to require that the delivery of written termination notices be made by certified mail, return receipt requested. The commenters argued that e-mail terminations were not acceptable because verifying that an e-mail was sent and received is difficult.
Our proposal requires that live poultry dealers “provide” poultry growers with written termination and does not favor one mode of delivery over another. We believe that any mode of delivery, whether it is by regular mail, certified mail, registered mail, overnight mail, e-mail, facsimile, or personal service is acceptable as long as notice is “provided.” Proof that written notice was “provided” is the responsibility of the live poultry dealer. GIPSA's past poultry investigations reveal that most live poultry dealers send written termination notices by verified delivery means. We believe that live poultry dealers should not be restricted to a specific mode of delivery of a notice of termination. Therefore, we are making no change to the final rule based on the above comments.
One comment suggested that growers should receive less than 30 days written advance notice of termination. That commenter was concerned that once a live poultry dealer gave notice of the termination of a poultry growing arrangement for cause, the grower would neglect the flocks in its possession. Poultry growing arrangements contain clauses allowing live poultry dealers to enter upon the property of poultry growers in order to raise and care for flocks that the live poultry dealer believes may not be receiving adequate care. Once written termination notice is provided to the poultry grower, if the live poultry dealer believes the poultry grower is not providing sufficient care, the live poultry dealer can exercise its right to raise and care for the flock. We will therefore not modify § 201.100(h) in the final rule to permit a shorter period for advance notice of termination as suggested.
According to one commenter, growers should have 14 days to accept or reject a new or the renewal of an existing poultry growing arrangement. We believe that a 14-day rejection period is unnecessary provided that the grower receives a true written copy of the offered poultry growing arrangement from the live poultry dealer at the time that the grower receives the poultry house specifications for the offered poultry growing arrangement. This should give the grower sufficient time to read the poultry growing arrangement, consult with advisors, and decide whether to sign the poultry growing arrangement before committing to loans. Therefore, we are making no change to the final rule based on the comment.
The commenter agreed with the proposed rule for timely delivery of poultry growing arrangements to growers presented in the August 1, 2007 notice. The commenter, however, suggested in this same section that we also require that subsequent changes to poultry growing arrangements, whether in oral or written form, be incorporated into a new true written complete copy and presented as a new offer of a poultry growing arrangement, not as a unilateral change to the existing poultry growing arrangement. Because this suggestion is outside the scope of our proposal for the timely delivery of poultry growing arrangements to growers, we are making no change to the final rule based on the comment.
One commenter recommended that we require that live poultry dealers provide growers with a letter of intent or written approval of a grower in addition to the poultry growing arrangement. Another commenter recommended that we also require delivery of letters of intent or written grower approvals at the same time the live poultry dealer provides the poultry house specifications. While a letter of intent is a written record of a live poultry dealer's intention to sign or enter into a poultry growing arrangement with a grower, we believe that the poultry growing arrangement would contain the substantive information that a grower would need in order to decide if he/she will grow poultry for a live poultry dealer. Also, linking the delivery of poultry growing arrangements with receiving a letter of intent would not necessarily guarantee that the prospective grower would receive his/her poultry growing arrangement before committing to a construction loan for poultry houses. We believe that the delivery of a poultry growing arrangement should instead be linked to the receipt of the poultry house specifications so that a grower is assured of his/her contractual relationship with the live poultry dealer prior to financing a construction loan. We are therefore making no changes to § 201.100(c) in the final rule based on these comments.
One comment argued that it is not necessary to require that live poultry dealers deliver poultry growing arrangements at the time written house specifications are delivered. The commenter said that provisions for delivery are normally addressed in poultry growing arrangements between live poultry dealers and growers. Since we have received numerous complaints regarding the slow delivery of poultry growing arrangements, we continue to believe that our proposed amendment regarding the timing of the delivery of poultry growing arrangements is needed. We are therefore making no change to the final rule based on that comment.
One organization said that we should require that live poultry dealers give growers information about the feed and medications supplied to them. They also wanted growers on PIPs to have the right to reject flocks. One individual argued that live poultry dealers should be required to let growers see the hatchery and mortality records of other growers in their settlement groups so they could judge the fairness of the performance rankings. We are not requiring that live poultry dealers provide information on feed, medications, hatchery origins or mortality rates of poultry growers by other growers. If a poultry grower believes a live poultry dealer has systematically manipulated inputs to the grower's disadvantage, the grower may choose to report their complaint to GIPSA for investigation. Furthermore, these issues go beyond the scope of the subject matter of the proposed rule. We are therefore making no change to the final rule based on this comment.
Finally, the amendments in the proposed rule for “Written Termination Notice; furnishing, contents” listed three items that termination notices must contain. In addition, the phrase, “In the case of termination * * *.” was inadvertently included in the proposed regulatory text and will be removed from § 201.100(h) in the final rule. The authority citation in the proposed rule has also been revised in the final rule to reference the entire P&S Act (7 U.S.C. 181–229c) as the authorizing statute. The authority citation has been further revised in the final rule to delete references to 7 CFR 2.22 and 2.81, which refer to the delegation of authority of the Secretary of Agriculture to administer the P&S Act to the Under Secretary for Marketing and Regulatory Programs, and to further delegate that authority to the Administrator of GIPSA, respectively. For clarity and consistency with the statutory definition of a poultry growing arrangement, we are also replacing the term “contract” with the term “poultry growing arrangement” everywhere the word “contract” appears throughout the final rule. In addition, proposed new paragraph (h) has been revised in the final rule into (h), (h)(1), (h)(1)(i), (h)(1)(ii), (h)(1)(iii), and (h)(2) in order to make the regulatory text clearer.
This final rule has been determined to be significant for the purposes of Executive Order 12866, and therefore, has been reviewed by the Office of Management and Budget.
We have prepared an economic analysis for this final rule. The economic analysis provides a cost-benefit analysis, as required by Executive Order 12866. The provision in this final rule addresses the records that live poultry dealers must furnish poultry growers, including the requirements for the timing and contents of poultry growing arrangements. Vertical integration and high concentration in the poultry industry cause considerable asymmetry of information, lack of transparency, and an imbalance in market power.
The asymmetry of information at the time of contract negotiation, and the initial fixed investments poultry growers must pay to enter into the poultry growing business, make the typical grower vulnerable to hold-up costs.
Poultry growers have few options for negotiating more favorable contract terms among live poultry dealers because of geographic distance or equipment requirements. Growers often have much of their net worth invested in poultry houses, which have limited value for purposes other than raising and caring for poultry. And, without full and timely information, growers sometimes do not know or understand the full content of their own poultry growing arrangements with the live poultry dealers and are constrained by confidentiality clauses from discussing their terms with business advisers. These factors combined lead to market failures that cannot be resolved through private treaty negotiation to achieve an efficient market solution.
GIPSA has considered and collected input on potential alternative and believes that no viable alternatives to this final rule exist. This final rule imposes on live poultry dealers primarily office costs (e.g. revising poultry growing arrangements). GIPSA believes that these costs will be significantly less than the benefits that will be achieved from a reduction in general market inefficiencies.
Copies of the analysis are available by contacting the person listed under
The Small Business Administration (SBA) defines small businesses by its North American Industry Classification System Codes (NAICS).
GIPSA maintains data on live poultry dealers from the annual reports that these firms file with the agency. Currently, there are 140 live poultry dealers (all but 16 are also poultry slaughterers and would be considered poultry integrators) that will be subject to this final rule. According to U.S. Census data on County Business Patterns, there were 64 poultry slaughters firms that had more than 500 employees in 2006. The difference yields approximately 75 poultry slaughters/integrators with fewer than 500 employees and would be considered as small business that will be subject to this final rule.
Another factor, however, which is important in determining the economic effect of the regulations, is the number of poultry growing arrangements held by a live poultry dealer. Poultry growers enter into a poultry growing arrangement with one live poultry dealer, whereas a live poultry dealer may have a number of poultry growing arrangements with many growers. While growers may have sophisticated growing facilities, many are independent family owned businesses that are focused on growing poultry to the specifications outlined in their poultry growing arrangements. Most live poultry dealers, however, are much larger integrated commercial entities that breed, hatch, slaughter and process poultry for the retail market. Given the business size differential between a poultry grower and a live poultry dealer and the regional monopsony power a live poultry dealer may have, the live poultry dealer has much more information to consider when establishing the terms of and entering into a poultry growing arrangement. The live poultry dealer is much more likely to have a staff of financial and business advisors on which to rely. By contrast, the poultry grower operating under an existing poultry growing arrangement may not be allowed to share the terms of the poultry growing arrangement with its advisors.
GIPSA records for 2007 indicated that there were 20,637 poultry growing arrangements of which 13,216, or 64 percent, were held by the largest 6 live poultry dealers, and 95 percent (19,605) were held by the largest 21 live poultry dealers. These 21 live poultry dealers are all in SBA's large business category, whereas the 19,605 poultry growers holding the other side of the poultry growing arrangement are all small businesses by SBA's definitions. The situation in general for the nation's poultry growers operating under poultry growing arrangements is that the growers are almost all small businesses with a poultry growing arrangement held by one of the very large live poultry dealers. To illustrate the magnitude in size differences between the growers and the live poultry dealer, using grower gross sales revenue of $750,000 per year and the average gross sales revenue of three of these very large live poultry dealers, yields a ratio of roughly 1:23,000. We believe that providing poultry growers with the ability to discuss the terms of their poultry growing arrangements with business and financial advisors will enable the growers to make more informed decisions as they negotiate the terms of their poultry growing arrangements with the live poultry dealer. This final rule will help to level the playing field for poultry growers by providing them with access to financial and business information and advice that is accessible to live poultry dealers, and therefore will help to balance market asymmetric inequities.
Although the costs and benefits are largely intangible, GIPSA believes that the costs to both poultry growers and live poultry dealers firms will be essentially negligible. This final rule does not impose significant additional requirements on the actions firms must enact; merely the timeliness of those actions. While this final rule requires that poultry growers and live poultry dealers commit in writing to terms and conditions that are already in effect, it does not mandate what those terms and conditions must be. Thus, the only additional cost is simply the cost of producing and transmitting the printed document. GIPSA did not receive any comments from live poultry dealers or others that suggested that there would be any significant costs of implementing the provisions in this final rule.
Collectively, the provisions in this final rule mitigate potential asymmetries of information between poultry growers and live poultry dealers, which lead to better decisions on the terms of compensation and reduce the potential for expressions of anti-competitive market power. The provisions in this final rule achieve this primarily through improved quality and timeliness of information to poultry growers, and to some extent to live poultry dealers as well. Benefits will accrue to growers from an improved basis for making the decision about whether to enter into a poultry growing arrangement, and from
Based on the discussion in the analysis above, GIPSA therefore has determined that the effect on all small businesses will not have a significant economic impact on a substantial number of small business entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. These actions are not intended to have retroactive effect. This final rule will not pre-empt state or local laws, regulations, or policies, unless they present an irreconcilable conflict. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule.
This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies provide the public with the option of submitting information or transacting business electronically to the maximum extent possible.
Contracts, Poultry and poultry products, Trade practices.
7 U.S.C. 181–229c.
(a)
(b)
(1) A Federal or State agency;
(2) The grower's financial advisor or lender;
(3) The grower's legal advisor;
(4) An accounting services representative hired by the grower;
(5) Other growers for the same live poultry dealer; or
(6) A member of the grower's immediate family or a business associate. A business associate is a person not employed by the grower, but with whom the grower has a valid business reason for consulting with when entering into or operating under a poultry growing arrangement.
(c)
(3) Whether a performance improvement plan exists for that grower, and if so specify any performance improvement plan guidelines, including the following:
(i) The factors considered when placing a poultry grower on a performance improvement plan;
(ii) The guidance and support provided to a poultry grower while on a performance improvement plan; and
(iii) The factors considered to determine if and when a poultry grower is removed from the performance improvement plan and placed back in good standing, or when the poultry growing arrangement will be terminated.
(h)
(1) A live poultry dealer that ends a poultry growing arrangement with a poultry grower due to a termination, non-renewal, or expiration and subsequent non-replacement of a poultry growing arrangement shall provide the poultry grower with a written termination notice at least 90 days prior to the termination of the poultry growing arrangement. Written notice issued to a poultry grower by a live poultry dealer regarding termination shall contain the following:
(i) The reason(s) for termination;
(ii) When the termination is effective; and
(iii) Appeal rights, if any, that a poultry grower may have with the live poultry dealer.
(2) A live poultry dealer's poultry growing arrangement with a poultry grower shall also provide the poultry grower with the opportunity to terminate its poultry growing arrangement in writing at least 90 days prior to the termination of the poultry growing arrangement.
National Credit Union Administration (NCUA).
Final rule.
Section 741.4 of NCUA's rules describes the procedures for the capitalization and maintenance of the National Credit Union Share Insurance
This rule is effective January 4, 2010.
Elizabeth Wirick, Staff Attorney, Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428 or telephone: (703) 518–6540; and Paul Peterson, Director, Applications Section, Office of General Counsel, National Credit Union Administration, at the same address and telephone number.
NCUA proposed amendments to § 741.4 in July 2009. 74 FR 36618 (July 24, 2009). The amendments address how a credit union that enters NCUSIF coverage, or departs from NCUSIF coverage, in any given year calculates its share of any deposit replenishment assessment, premium assessment, or equity distribution in that year.
As described in the preamble to the proposed rule, both the Federal Credit Union Act (Act) and the prior version of § 741.4 address NCUSIF's authority to assess federally insured credit unions for deposit replenishment and premiums when necessary to maintain NCUSIF's equity ratio. 74 FR 36618, 36619 (July 24, 2009). The current rule, however, does not clearly state NCUA's policy for calculating NCUSIF premium or deposit replenishment assessments for credit unions that enter or depart the NCUSIF system in a year when an assessment occurs. This final rule amends § 741.4 to clarify these issues and other related issues.
NCUA received five comment letters on the proposal—two from national credit union trade associations, two from state credit union leagues, and one from an individual credit union. All commenters expressed support for the proposal and found it a helpful clarification of NCUA's current policies. Except as noted below, the Board is now adopting the rule as proposed.
Two commenters requested the final rule include a requirement for NCUA to provide detailed information about the cause, type, and amount of NCUSIF's expenses in connection with any assessments. The Board has not adopted such a requirement. By definition, all of NCUSIF's expenses result from insuring member shares, providing special assistance to avoid liquidation, and related administrative expenses. 12 U.S.C. 1783(a). Premium and one percent deposit replenishment assessments occur when NCUSIF expenses cause its equity ratio and/or available asset ratio to fall below certain levels. The Act allows NCUA to assess premiums when NCUSIF's equity ratio falls below the normal operating level established by the Board and requires NCUA to assess premiums when the equity ratio falls below 1.2 percent. 12 U.S.C. 1782(c)(2)(B)–(C). The Act also allows NCUA to expend the one percent deposit as necessary and provides for replenishment of the one percent deposit under procedures established by NCUA. 12 U.S.C. 1782(c)(1)(B)(iv).
Two commenters also expressed concern that when, as now, NCUSIF assessments resulting from expenses incurred in one year are spread over multiple years, credit unions leaving NCUSIF and paying a pro-rated premium assessment for one year receive an unfair benefit because they escape the assessments in subsequent years. NCUA has made every attempt to treat credit unions leaving and entering NCUSIF equitably, but agrees credit unions leaving NCUSIF in the midst of a multi-year cycle of assessments may not pay their full share of the cost of NCUSIF coverage. The FCU Act requires, however, that credit unions converting to private share insurance pay pro-rated premium assessments. 12 U.S.C. 1786(d)(3). NCUA believes it is consistent with the FCU Act to also apply pro-rated premium assessments to credit unions leaving NCUSIF for other reasons, as stated in paragraph (j)(1)(iii) of the rule.
At this time, the Board is not adopting the proposed changes to § 741.4(k) and § 701.6(d) regarding late payment penalties for NCUSIF assessments and the federal credit union operating fee. The Board has decided to delay consideration of these potential changes until a later time, possibly 2011. Accordingly, the current provisions, providing for an administrative fee, interest, and the costs of collection, remain in force. One commenter on the late payment provisions asked that the regulation provide for partial waivers of late payment penalties. The Board has determined that the current language of §§ 741.4(k) and 701.6(d) would permit partial waivers. The same commenter also requested NCUA take a credit union's good faith effort to make timely payment into account when imposing penalties. The rule permits waiver “if circumstances warrant” and the Board will certainly consider a credit union's good faith efforts to pay in a timely manner when considering a penalty waiver request.
The only change from the current version of subsection 741.4(k) adopted in this final rule is the addition, in paragraph (4), of references to the penalties for late payment permitted under the FCU Act. The same provisions were proposed as paragraph (2) of this subsection.
The proposal specifically sought comments on whether the examples of specific calculations contained in that preamble should be incorporated in the rule text or in an appendix to the rule. The only commenter to address this issue requested including the examples in an appendix, and the final rule adopts this approach. Appendix A to Part 741 is entitled
One commenter suggested the proposal would be more clear if NCUA reversed the conditional and directive clauses in subparagraphs (i)(1)(ii)–(v) and (j)(1)(ii)–(iii). NCUA considered this suggestion but believes keeping the conditional clause first in these paragraphs facilitates determination of which situation applies in a particular year.
The Board is also adopting some minor recommendations from agency staff that clarify certain terms and procedures in several sections. The final rule revises the language in paragraphs (j)(1)(i) and (j)(2)(ii) of the proposal describing how the impairment of the one percent deposit affects the refundability of the deposit. The revised language states a credit union leaving NCUSIF coverage is entitled to a refund of “the full amount of its NCUSIF deposit paid, less any amounts applied to cover NCUSIF losses that exceed NCUSIF retained earnings.” The Board also clarifies that for voluntary credit union liquidations, the one percent deposit refund is determined by whether any amount of the deposit has been applied to cover NCUSIF losses exceeding earnings as of the date of liquidation, which is the date members vote to liquidate. 12 CFR 710.1(b).
The Board has revised paragraph (h) to remove a possible source of confusion. The intent of the proposal was to establish a deadline for NCUA to invoice for one percent deposit replenishments. As drafted, the proposal required the invoice to be sent no later than the annual or semiannual
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small credit unions, defined as those under ten million dollars in assets. This rule clarifies existing requirements and will not impose any new regulatory requirements. The rule will not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required.
NCUA has determined that the rule would not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget. 44 U.S.C. 3501
The Small Business Regulatory Enforcement Act of 1996 (Pub. L. 104–121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. NCUA does not believe this final rule is a “major rule” within the meaning of the relevant sections of SBREFA. NCUA has submitted the rule to the Office of Management and Budget for its determination in that regard.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The rule would not have substantial direct effects on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
The NCUA has determined that the rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105–277, 112 Stat. 2681 (1998).
Credit unions, Insurance.
12 U.S.C. 1757, 1766(a), 1781–1790, and 1790d: 31 U.S.C. 3717.
(a)
(b)
(i) The amount determined by subtracting all liabilities of the NCUSIF, including contingent liabilities for which no provision for losses has been made, from the sum of cash and the market value of unencumbered investments authorized under Section 203(c) of the Act (12 U.S.C. 1783(c)), to:
(ii) The aggregate amount of the insured shares in all insured credit unions.
(iii) Shown as an abbreviated mathematical formula, the available assets ratio is:
(i) The amount of NCUSIF's capitalization, meaning insured credit unions' one percent capitalization deposits plus the retained earnings balance of the NCUSIF (less contingent liabilities for which no provision for losses has been made) to:
(ii) The aggregate amount of the insured shares in all insured credit unions.
(iii) Shown as an abbreviated mathematical formula, the equity ratio is:
(c)
(d)
(2)
(ii) If the equity ratio of the NCUSIF falls to between 1.0 and 1.2 percent, the NCUA Board is required to assess a premium in an amount it determines is necessary to restore the equity ratio to at least 1.2 percent, as provided for in the restoration plan adopted under Section 202(c)(2)(D) of the Act (12 U.S.C. 1782(c)(20)(D)). If the equity ratio of the NCUSIF falls below 1.0 percent, the NCUA Board is required to assess a deposit replenishment charge in an amount it determines is necessary to restore the equity ratio to 1.0 percent and to assess a premium charge in an amount it determines is necessary to restore the equity ratio to, at least 1.2 percent, as provided for in the restoration plan adopted under Section 202(c)(2)(D) of the Act (12 U.S.C. 1782(c)(20)(D)).
(e)
(f)
(g)
(h)
(i)
(1) A credit union or other institution that converts to insurance coverage with the NCUSIF will:
(i) Immediately fund its one percent deposit based on the total of its insured shares as of the last day of the most recently ended reporting period prior to the date of conversion;
(ii) If the NCUSIF assesses a premium in the calendar year of conversion, pay a premium based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the invoice date times the institution's premium/distribution ratio;
(iii) If the NCUSIF declares, in the calendar year of conversion on or before the date of conversion, an assessment to replenish the one-percent deposit, pay nothing related to that assessment;
(iv) If the NCUSIF declares, at any time after the date of conversion through the end of that calendar year, an assessment to replenish the one-percent deposit, pay a replenishment amount based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the invoice date; and
(v) If the NCUSIF declares a distribution in the year following conversion based the NCUSIF's equity at the end of the year of conversion, receive a distribution based on the institution's insured shares as of the end of the year of conversion times the institution's premium/distribution ratio. With regard to distributions declared in the calendar year of conversion but based on the NCUSIF's equity from the end of the preceding year, the converting institution will receive no distribution.
(2) A federally-insured credit union that merges with a nonfederally insured credit union or other nonfederally insured institution (the “merging institution”), where the federally insured credit union is the continuing institution, will:
(i) Immediately on the date of merger increase the amount of its NCUSIF deposit by an amount equal to one percent of the merging institution's insured shares as of the last day of the merging institution's most recently ended reporting period preceding the date of merger;
(ii) With regard to any NCUSIF premiums assessed in the calendar year of merger, pay a two-part premium, with one part calculated on the merging institution's insured shares as described in paragraph (i)(1)(ii) of this section, and the other part calculated on the continuing institution's insured shares as of the last day of its most recently ended reporting period preceding the date of merger; and
(iii) If the NCUSIF declares a distribution in the year following the merger based the NCUSIF's equity at the end of the year of merger, receive a distribution based on the continuing institution's insured shares as of the end of the year of merger. With regard to distributions declared in the calendar year of merger but based on the NCUSIF's equity from the end of the preceding year, the institution will receive a distribution based on its insured shares as of the end of the preceding year.
(j)
(1) A federally insured credit union whose insurance coverage with the NCUSIF terminates, including through a conversion to, or merger into, a nonfederally insured credit union or a noncredit union entity, will:
(i) Receive the full amount of its NCUSIF deposit paid, less any amounts applied to cover NCUSIF losses that exceed NCUSIF retained earnings, immediately after the final date on which any shares of the credit union are NCUSIF-insured;
(ii) If the NCUSIF declares a distribution at the end of the calendar year of conversion, receive a distribution based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the date of conversion times the institution's modified premium/distribution ratio; and
(iii) If the NCUSIF assesses a premium in the calendar year of conversion or merger on or before the day in which the conversion or merger is completed, pay a premium based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the conversion or merger date times the institution's modified premium/distribution ratio. If the institution has previously paid a premium based on this same assessment that exceeds this amount, the institution will receive a refund of the difference following completion of the conversion or merger.
(2) Notwithstanding the requirements of paragraph (j)(1) of this section:
(i) Any insolvent credit union that is closed for involuntary liquidation will not be entitled to a return of its deposit;
(ii) Any solvent credit union that is closed due to voluntary or involuntary liquidation will be entitled to a return of its deposit paid, less any amounts applied to cover NCUSIF losses that exceed NCUSIF retained earnings, prior to final distribution of member shares; and
(iii) The Board reserves the right to delay return of the deposit to any credit union converting from or terminating its federal insurance, or voluntarily liquidating, for up to one year if the Board determines that immediate repayment would jeopardize the NCUSIF.
(k)
(1) The administrative fee for a delinquent payment shall be an amount as fixed from time to time by the NCUA Board based upon the administrative costs of such delinquent payments to the NCUA in the preceding year.
(2) The costs of collection shall be calculated as the actual hours expended by NCUA personnel multiplied by the average hourly cost of the salaries and benefits of such personnel.
(3) The interest rate charged on any delinquent payment shall be the U.S. Department of the Treasury Tax and loan Rate in effect on the date when the loan payment is due as provided in 31 U.S.C. 3717.
(4) The Act contains specific penalties and other consequences for delinquent payments, including, but not limited to:
(i) Section 202(d)(2)(B) of the Act (12 U.S.C. 1782(d)(2)(B)) provides that the Board may assess and collect a penalty from an insured credit union of not more than $20,000 for each day the credit union fails or refuses to pay any deposit or premium due to the fund; and
(ii) Section 202(d)(3) of the Act (12 U.S.C. 1782(d)(3)) provides, generally, that no insured credit union shall pay any dividends on its insured shares or distribute any of its assets while it remains in default in the payment of its deposit or any premium charge due to the fund. Section 202(d)(3) further provides that any director or officer of any insured credit union who knowingly participates in the declaration or payment of any such dividend or in any such distribution shall, upon conviction, be fined not more than $1,000 or imprisoned more than one year, or both.
The following examples illustrate the calculation of deposit and premium assessments under each circumstance addressed in paragraphs (i) and (j) of § 741.4.
A.
1. Paragraph (i)(1)(i) provides that a credit union or other institution that converts to insurance coverage with the NCUSIF will immediately fund its one percent deposit based on the total of its insured shares as of the last day of the most recently ended reporting period prior to the date of conversion.
i. The following hypothetical illustrates the application of this provision. Assume Main Street Credit Union completes its conversion from nonfederal to federal insurance on May 15 of Year One. Assume further that Main Street credit union had 1,000 insured shares for the end of month in December of the previous year (Year zero), 1,100 insured shares for at the end of May, the month of conversion, and 1,200 insured shares at the end of June. This information is presented in this Table A:
ii. Paragraph (i)(1)(i) requires that on the date of its conversion, Main Street fund its one percent deposit based on “the total of its insured shares as of the last day of the most recently ended reporting period prior to the date of conversion.” Since Main Street has less than $50,000,000 in assets, its reporting period is annual, and ends on December 31. 12 CFR 741.4(b)(6) (definition of “reporting period”). Main Street had $1,000 in insured shares on that date, and one percent of that is $10, and so that is the amount Main Street must immediately remit to the NCUSIF to establish its one percent deposit.
2. Paragraph (i)(1)(ii) provides that a credit union or other institution that converts to insurance coverage with the NCUSIF will, if the NCUSIF assesses a premium in the calendar year of conversion, pay a premium based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the invoice date times the institution's premium/distribution ratio * * *.
i. To illustrate the application of paragraph (i)(1)(ii), take the same facts in hypothetical A related to the conversion of Main Street from nonfederal to federal insurance. Now, further assume that on the previous March 15, NCUA had declared a premium assessment, and on September 15 following the conversion NCUA sent out the invoices for the March 15 assessment. Also assume that Main Street had grown to 1,300 insured shares at the end of September, the month the invoices were sent to Main Street and other credit unions. This information is presented in this Table B:
ii. Paragraph (i)(1)(ii) requires Main Street pay a premium based on the institution's “insured shares as of the last day of the most recently ended reporting period preceding the invoice date times the institution's premium/distribution ratio.” Again, because Main Street is under $50 million in assets, the most recently ended reporting period preceding the September 15 invoice date is all the way back to December of Year Zero, when Main Street had $1,000 in shares. Main Street's “premium/distribution ratio,” as defined in § 741.4(b)(5), is “the number of full remaining months in the calendar year following the date of the institution's conversion or merger divided by 12.” Since Main Street completed its conversion in May, there are seven full months remaining in the calendar year (June through December), and Main Street's premium/distribution ratio is seven divided by 12. Accordingly, Main Street's premium will be assessed on $1,000 times seven divided by 12, or about $583.
3. Paragraphs (i)(1)(iii) and (iv) describe the responsibility of a credit union or other entity converting to federal insurance to replenish a depleted NCUSIF deposit, as follows: A credit union or other institution that converts to insurance coverage with the NCUSIF will, if the NCUSIF declares, in the calendar year of conversion but on or before the date of conversion, an assessment to replenish the one-percent deposit, pay nothing related to that assessment; if the NCUSIF declares, at any time after the date of conversion through the end of that calendar year, an assessment to replenish the one-percent deposit, pay a replenishment amount based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the invoice date.
i. Paragraph (i)(1)(iii) clarifies that a converting credit union has no responsibility to pay anything toward the replenishment of a depleted deposit that is declared on or before the date of conversion, even if NCUA sends out invoices related to the depletion after the date of conversion. Paragraph (i)(1)(iv) requires that a converting credit union replenish its deposit with regard to a depletion declared after the date of conversion through the end of the calendar year. Again, assume the same facts for Main Street as in Table B, but that the deposit depletion was announced in June, after Main Street converted, and that NCUA sent the invoices in September.
ii. Main Street would receive an invoice amount “based on the [Main Street's] insured shares as of the last day of the most recently ended reporting period preceding the invoice date.” Since Main Street has less than $50 million in shares, the most recently ended reporting period preceding the September invoice date was December 31, Year Zero, and it would pay for the replenishment based on $1,000 in insured shares. If Main Street, however, had had $50 million or more in assets on June 30, its most recently ended reporting period preceding the invoice date would have been the semiannual period ending on June 30, and Main Street would have used its insured shares as of June 30 to calculate the replenishment amount due to the NCUSIF.
4. Under the Federal Credit Union Act, distributions, if any, are declared once a year, early in the year, based on excess funds in the NCUSIF as of the prior December 31. Paragraph (i)(1)(v) describes the right of a credit union or other entity converting to federal insurance to receive a distribution from the NCUSIF, specifically: A credit union or other institution that converts to insurance coverage with the NCUSIF will, if the NCUSIF declares a distribution in the year following conversion based the NCUSIF's equity at the end of the year of conversion, receive a distribution based on the institution's insured shares as of the end of the year of conversion times the institution's premium/distribution ratio. With regard to distributions declared in the calendar year of conversion but based on the NCUSIF's equity at the end of the preceding year, the converting institution will receive no distribution.
i. To illustrate how paragraph (i)(1)(v) works, assume that Main Street Credit Union converts to federal insurance in May of Year One, and that the NCUA declares a distribution in January of Year Two based on the NCUSIF equity as of December 31 of Year One. Then Main Street will be entitled to a pro rata portion of the distribution, calculated on its insured shares as of December 31 of Year One times its premium/distribution ratio. Since it converted in May of Year One, and there were seven full months remaining in Year One at on the date of conversion, Main Street's premium/distribution ratio under § 741.4(b)(6) equals seven divided by 12.
ii. On the other hand, if the NCUA declared a distribution a year earlier, that is, in January of Year One based on the NCUSIF's equity ratio as of December 31 in Year Zero, then under paragraph (i)(1)(v) Main Street would receive no part of this distribution. Main Street is not entitled to any part of this distribution because Main Street, which completed its conversion in Year One, did not contribute in any way to the excess funds in the NCUSIF as of the end of Year Zero.
B.
Paragraph (i)(2) addresses the NCUSIF premiums, deposit replenishments, and distribution calculations when a nonfederally insured credit union or entity converts to NCUSIF coverage by merging with a federally insured credit union.
1. Paragraph (i)(2)(i) provides that a federally-insured credit union that merges with a nonfederally-insured credit union or other non-federally insured institution (the “merging institution”), where the federally-insured credit union is the continuing institution, will immediately on the date of merger increase the amount of its NCUSIF deposit by an amount equal to one percent of the merging institution's insured shares as of the last day of the merging institution's most recently ended reporting period preceding the date of merger.
i. To illustrate this provision, and the other provisions of paragraph (i)(2) related to mergers of nonfederally insured entities into federally-insured credit unions, consider the following hypothetical. Nonfederally-insured Credit Union A merges into federally-insured Credit Union B on August 15 of Year One. The relevant insured shares of Credit Union A and Credit Union B at various dates before and after the merger are reflected in Table D:
ii. Paragraph (i)(2)(i) requires that Credit Union B, the continuing credit union, immediately increase the amount of its deposit with the NCUSIF in an amount “equal to one percent of the merging institution's insured shares as of the last day of the merging institution's most recently ended reporting period preceding the date of merger.” Since Credit Union A, the merging institution, has less than $50 million in assets, its reporting period is the calendar year, and its most recently ended reporting period preceding the August merger date is December 31 in Year Zero. Credit Union A had $1,000 in insured shares on that date. Accordingly, Credit Union B, the continuing credit union, must immediately increase the amount of its deposit with the NCUSIF by one percent of $1,000, or $10. Note that if Credit Union A had been a larger credit union, with $50 million or more in assets on June 30 in Year One, then Credit Union B would have used Credit Union A's insured shares as of June 30 in this calculation.
2. Paragraph (i)(2)(ii), relating to NCUSIF premium assessments, provides that the continuing institution will, with regard to any NCUSIF premiums assessed in the calendar year of merger, pay a two-part premium, with one part calculated on the merging institution's insured shares as described in subparagraph (1)(ii) above, and the other part calculated on the continuing institution's insured shares as of the last day of its most recently ended reporting period preceding the date of merger.
i. Paragraph (i)(2)(ii) provides for a two-part calculation, with the first part relating to the merging credit union and the second part relating to the continuing credit union. Assuming the facts as in Table D, and assuming the premium is assessed sometime in Year One, calculate the insured shares of Credit Union A, the merging credit union, as in the example for paragraph (i)(1)(ii). Once again, because Credit Union A is under $50 million in assets, the most recently ended reporting period preceding the invoice date is December of Year Zero, when Credit Union A had $1,000 in shares. The merger was completed in August, leaving four full months in the calendar year, so the premium/distribution ratio is four divided by 12. Accordingly, this part of the premium will be assessed on $1,000 times four divided by 12, or about $333. Then calculate the insured shares of Credit Union B, the continuing credit union, “as of the last day of its most recently ended reporting period preceding the merger date.” Since Credit Union B is also under $50 million in assets, “the last day of the most recently ended reporting period” is also December 31 of Year Zero. Credit Union B's insured shares on that date were $9,000, and so the combined insured shares for purposes of the premium assessment is $9,333. Note that if Credit Union B had $50 million or more in assets on June 30 of Year One, then Credit Union B's “most recently ended reporting period preceding the merger date” would have been June 30 of Year One, and not December 31 of Year Zero. The Board is aware that the NCUA might declare a NCUSIF premium, invoice it, and receive the premiums in Year One from the continuing institution before the continuing institution consummates its merger. In that case, the Board would invoice the continuing credit union again after the merger, but only for the difference between the amount previously invoiced and the amount calculated under paragraph (i)(2)(ii).
3. Paragraph (i)(2)(iii) prescribes the procedures for calculating the NCUSIF distribution when a nonfederally insured credit union or entity merges into a federally insured credit union. Paragraph (i)(2)(iii)
i. This formula recognizes that the merging institution did not contribute to the NCUSIF equity as of the end of the year preceding the merger and so no distribution is allotted against the merging institution's shares. As for distributions based on the NCUSIF equity at the end of the year of merger, this formula does not include any pro rata reduction for the merging institution's contribution. The Board determined that a pro rata reduction was unnecessary, given the generally small relative size of merging institutions to continuing institutions, and the fact that the Federal Credit Union Act does not require any sort of pro rata reduction or other pro rata calculation with regard to distributions.
C.
Paragraph (j)(1) addresses direct insurance conversions and conversions by merger. Paragraph (j)(2) addresses liquidations and insurance termination.
1. Paragraph (j)(1)(i) provides that a federally insured credit union whose insurance coverage with the NCUSIF terminates, including through a conversion to, or merger into, a nonfederally insured credit union or a noncredit union entity, will receive the full amount of its NCUSIF deposit paid, less any amounts applied to cover NCUSIF losses that exceed NCUSIF retained earnings, immediately after the final date on which any shares of the credit union are NCUSIF-insured.
i. To illustrate the application of this paragraph (j)(1)(i), consider the following hypothetical. Assume Anytown Credit Union, a credit union with $30 million in assets, converts from federal to nonfederal insurance on November 15. Also assume Anytown Credit Union had $20 million in insured shares as of the previous December 31, the end of its most recent reporting period. 12 CFR 741.4(b)(5), (c). The NCUSIF would return one-percent of $20 million, or $200,000 to Anytown Credit Union immediately following the effective date of its conversion. Note that, if Anytown Credit Union had reported $50 million or more in assets on June 30, then June 30 would have been the end of its most recent reporting period. Now further assume that, on July 15 of that same year, the NCUSIF had announced an expense that reduced the equity ratio from 1.3 to .75, which would have included a write-off (depletion) of 25%, or 25 basis points, of the one-percent deposit. The amount of the deposit returned to Anytown would be reduced by 25%, from $200,000 to $150,000. If the NCUSIF had announced expenses reducing the equity ratio to .75 after the November 15 conversion date, this announcement would have no effect on Anytown and it would still receive the full $200,000 from the NCUSIF.
2. Paragraph (j)(1)(ii) provides that a federally insured credit union whose insurance coverage with the NCUSIF terminates, including through a conversion to, or merger into, a nonfederally insured credit union or a noncredit union entity, will, if the NCUSIF declares a distribution at the end of the calendar year of conversion, receive a distribution based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the date of conversion times the institution's modified premium/distribution ratio.
i. To illustrate the application of this paragraph (j)(1)(ii), again assume Anytown Credit Union converts to nonfederal insurance on November 15, and in January of the following year, the NCUSIF declares a distribution based on the NCUSIF's equity ratio as of December 31. Anytown would receive a pro rata distribution calculated as its $20 million in insured shares multiplied by the modified premium/distribution ratio. Anytown's modified premium/distribution ratio, from the definition in § 741.4(b)(5), is one minus Anytown's premium/distribution ratio, which is one minus the ratio of the full number of months remaining in the year divided by twelve, which is one minus (one divided by twelve), which is eleven divided by twelve. So Anytown would receive a pro rata distribution based on $20 million of insured shares times eleven-twelfths, or based on about $18.33 million in shares.
3. Paragraph (j)(1)(iii) provides that a federally insured credit union whose insurance coverage with the NCUSIF terminates, including through a conversion to, or merger into, a nonfederally insured credit union or a noncredit union entity, will, if the NCUSIF assesses a premium in the calendar year of conversion or merger on or before the day in which the conversion or merger is completed, pay a premium based on the institution's insured shares as of the last day of the most recently ended reporting period preceding the conversion or merger date times the institution's modified premium/distribution ratio. If the institution has previously paid a premium based on this same assessment that exceeds this amount, the institution will receive a refund of the difference following completion of the conversion or merger.
i. To illustrate these premium provisions, again assume Anytown Credit Union is a credit union with $30 million in assets that converts from federal to nonfederal insurance on November 15 of Year One, and that Anytown Credit Union had $20 million in insured shares as of the previous December 31 (of Year Zero), the end of its most recent reporting period. Further assume that NCUA declares a premium on February 12 of Year One and invoices the premium on November 15. Since the premium was declared “on or before the day in which [Anytown's] conversion [was] completed,” § 741.4(j)(1)(iii) applies. Anytown would then pay a premium based on $20 million (its “insured shares as of the last day of the most recently ended reporting period preceding the conversion or merger date”) times eleven-twelfths (its “modified premium/distribution ratio”), or based on about $18.33 million. Note that NCUA might have already have invoiced Anytown for the premium sometime between February 12 and Anytown's merger on November 15. If so, Anytown will likely receive a refund of some of this earlier premium, as provided in the last sentence of § 741.1(j)(1)(iii), since it may have overpaid the earlier premium.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is revising an existing airworthiness directive (AD), which applies to all Lockheed Model L–1011 series airplanes. That AD currently requires revising the FAA-approved maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also requires the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive fuel system limitations to phase in those inspections, and repair if necessary. This AD clarifies the intended effect of the AD on spare and on-airplane fuel tank system components. This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
This AD is effective December 18, 2009.
On June 25, 2008 (73 FR 29410, May 21, 2008), the Director of the Federal
We must receive any comments on this AD by January 19, 2010.
You may send comments by any of the following methods:
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For service information identified in this AD, contact Lockheed Continued Airworthiness Project Office, Attention Airworthiness, 86 South Cobb Drive, Marietta, Georgia 30063–0567; telephone 770–494–5444; fax 770–494–5445; e-mail
You may examine the AD docket on the Internet at
Robert A. Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE–118A, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, Georgia 30337; telephone (404) 474–5583; fax (404) 474–5606.
On May 8, 2008, we issued AD 2008–11–02, Amendment 39–15524 (73 FR 29410, May 21, 2008). That AD applied to all Lockheed Model L–1011 series airplanes. That AD required revising the FAA-approved maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also required the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive fuel system limitations to phase in those inspections, and repair if necessary. That AD resulted from a design review of the fuel tank systems. The actions specified in that AD are intended to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.
Since we issued that AD, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.
Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:
No person may operate an aircraft for which a manufacturer's maintenance manual or instructions for continued airworthiness has been issued that contains an airworthiness limitation section unless the mandatory * * * procedures * * * have been complied with.
The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to revise AD 2008–11–02. This new AD retains the requirements of the existing AD, and adds a new note to clarify the intended effect of the AD on spare and on-airplane fuel tank system components.
AD 2008–11–02 allowed the use of alternative CDCCLs if they are part of a later revision of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008. That provision has been removed from this AD. Allowing the use of “a later revision” of a specific service document violates Office of the Federal Register regulations for approving materials that are incorporated by reference. Affected operators, however, may request approval to use an alternative CDCCL that is part of a later revision of the referenced service document as an alternative method of compliance, under the provisions of paragraph (k) of this AD.
We have revised paragraph (g)(2) of this AD to remove information on certain approved methods. Instead we have added Note 3 to this AD to specify that guidance on certain CDCCLs can be found in the documents identified in Table 1 of this AD. We have re-identified subsequent notes accordingly. We have approved the documents in Table 1 of this AD. Operators may contact the Manager, Atlanta Aircraft Certification Office, for guidance regarding the use of the documents in Table 1 of this AD.
We have revised paragraphs (g), (g)(2), (h), (h)(1), and (h)(2), Note 4, and Tables 1 and 2 of this AD to remove the term “the service bulletin,” which is defined in paragraph (f) of this AD. We have provided the full service bulletin citation throughout this AD to avoid any confusion about which specific service bulletin is being referenced. However, we have not removed the “Service Bulletin Reference” paragraph from this AD. Because this AD revises AD 2008–11–02, we cannot change paragraph references, which would adversely affect compliance. Therefore, we have determined that leaving paragraph (f) of this AD unchanged is a less burdensome
This revision imposes no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows:
There are about 108 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $80 per work hour, for U.S. operators to comply with this AD.
This revision merely clarifies the intended effect on spare and on-airplane fuel tank system components, and makes no substantive change to the AD's requirements. For this reason, it is found that notice and opportunity for prior public comment for this action are unnecessary, and good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) is effective December 18, 2009.
(b) This AD revises AD 2008–11–02, Amendment 39–15524.
(c) This AD applies to all Lockheed Model L–1011 series airplanes, certificated in any category.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been
(d) This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008.
(g) Before December 16, 2008, revise the FAA-approved maintenance program to incorporate the fuel system limitations (FSLs) specified in paragraphs 2.B.(1)(b), 2.B.(1)(e), 2.B.(1)(f), and 2.B.(1)(g) of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, and the critical design configuration control limitations (CDCCLs) specified in paragraph 2.C. of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008; except as provided by paragraphs (g)(1), (g)(2), and (h) of this AD.
(1) Where the FSLs specify to inspect, this AD would require doing a general visual inspection.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(2) For the CDCCLs specified in paragraphs 2.C.(2)(c), 2.C.(2)(d), and 2.C.(15)(a) of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, do the applicable actions using a method approved in accordance with a method approved by the Manager, Atlanta Aircraft Certification Office, FAA.
Guidance on certain CDCCLs can be found in the documents identified in Table 1 of this AD.
(h) At the applicable compliance time specified in paragraph (h)(1) or (h)(2) of this AD, do the applicable FSLs specified in paragraphs 2.B.(1)(b), 2.B.(1)(e), 2.B.(1)(f), and 2.B.(1)(g) of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, and repair any discrepancy, in accordance with Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008. Any repair must be done before further flight.
(1) For the FSL identified in paragraph 2.B.(1)(b) of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, do the FSL before December 16, 2008.
(2) For the FSLs identified in paragraphs 2.B.(1)(e), 2.B.(1)(f), and 2.B.(1)(g) of Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, do the applicable FSLs within 60 months after June 25, 2008 (the effective date AD 2008–11–02).
Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, refers to the service information listed in Table 2 of this AD as additional sources of guidance for doing the FSLs and repair.
(i) Although Lockheed Service Bulletin 093–28–095, dated September 13, 2006; Lockheed Service Bulletin 093–28–096, Revision 2, dated June 23, 2006; and Lockheed Service Bulletin 093–28–097, dated August 3, 2006; specify to notify Lockheed of any discrepancies found during inspection or any evidence of damage or wire replacement, this AD does not require that action.
(j) After accomplishing the actions specified in paragraphs (g) and (h) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph (k) of this AD.
Notwithstanding any other maintenance or operational requirements, components that have been identified as airworthy or installed on the affected airplanes before the revision of the FAA-approved maintenance program, as required by paragraph (g) of this AD, do not need to be reworked in accordance with the CDCCLs. However, once the FAA-approved maintenance program has been revised, future maintenance actions on these components must be done in accordance with the CDCCLs.
(k)(1) The Manager, Atlanta Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Robert Bosak, Aerospace Engineer, Propulsion Branch, ACE–118A, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; telephone (404) 474–5583; fax (404) 474–5606.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(l) You must use Lockheed Service Bulletin 093–28–098, Revision 1, dated January 22, 2008, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register previously approved the incorporation by reference of this service information on June 25, 2008 (73 FR 29410 May 21, 2008).
(2) For service information identified in this AD, contact Lockheed Continued Airworthiness Project Office, Attention Airworthiness, 86 South Cobb Drive, Marietta, Georgia 30063–0567; telephone 770–494–5444; fax 770–494–5445; e-mail
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221 or 425–227–1152.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Energy Regulatory Commission, DOE.
Final rule.
The Federal Energy Regulatory Commission (Commission) is revising its regulations to incorporate by reference in its regulations at 18 CFR 38.2 the latest version (Version 002.1) of certain business practice standards adopted by the Wholesale Electric Quadrant of the North American Energy Standards Board (NAESB). NAESB's Version 002.1 Standards include standards adopted by NAESB in response to Order Nos. 890, 890–A, and
1. The Federal Energy Regulatory Commission (Commission) is amending its regulations under the Federal Power Act (FPA)
2. The new and revised standards that NAESB adopted in the Version 002.1 standards enable public utilities to implement requirements of Order Nos. 890, 890–A, and 890–B.
3. NAESB is a non-profit standards development organization established in January 2002 that serves as an industry forum for the development of business practice standards that promote a seamless marketplace for wholesale and retail natural gas and electricity.
4. NAESB's standards include business practices that streamline the transactional processes of the natural gas and electric industries, as well as communication protocols and related standards designed to improve the efficiency of communication within each industry. NAESB supports all four quadrants of the gas and electric industries—wholesale gas, wholesale electric, retail gas, and retail electric. All participants in the gas and electric industries are eligible to join NAESB
5. NAESB's procedures are designed to ensure that all industry members can have input into the development of a standard, whether or not they are members of NAESB, and each standard NAESB adopts is supported by a consensus of the six industry segments: transmission, generation, marketer/brokers, distribution/load serving entities, end users, and independent grid operators/planners. Under the WEQ process, for a standard to be approved, it must receive a super-majority vote of 67 percent of the members of the WEQ's Executive Committee with support from at least 40 percent of each of the six industry segments.
6. On September 2, 2008, NAESB reported to the Commission that its WEQ Executive Committee had approved Version 002.0 of its business practice standards.
7. On February 19, 2009, NAESB notified the Commission that the WEQ Executive Committee had approved its Version 002.1 standards, which include both new standards and modifications to existing Version 002.0 standards.
8. On March 19, 2009, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to incorporate by reference in its regulations at 18 CFR 38.2 certain
9. On July 7, 2009, and October 9, 2009, NAESB filed reports with the Commission stating that it made minor corrections to Standards WEQ–001, WEQ–003, WEQ–004, and WEQ–008, and corrections to Standard WEQ–008, which consisted of it deleting WEQ–008–1.4 and WEQ–008 Appendix D from Standard WEQ–008. These corrections were ratified by NAESB's members and unanimously adopted by WEQ's Executive Committee.
10. In this Final Rule, the Commission is amending its regulations under the FPA to incorporate by reference the NAESB WEQ Version 002.1 standards that the Commission proposed to incorporate in the WEQ Version 002.1 NOPR.
11. In Order No. 890, the Commission specifically requested that NAESB seek to develop business practice standards governing the terms and conditions of conditional firm service and the posting requirements for available transfer capability, its calculation, and other values. We recognize that NAESB was faced with a difficult task in seeking to develop industry consensus for standards that establish a set of business practice and communication standards to govern an entirely new service (conditional firm service), as well as the other changes envisioned by Order No. 890. For the most part, the industry has
12. In the NAESB WEQ Version 002.1 standards, NAESB has included business practice and technical standards to support conditional firm service, which will provide additional transmission and flexibility to customers. Additionally, NAESB has developed standards that govern the posting requirements for available transfer capability-related information, including narratives explaining changes in available transfer capability and total transfer capability, and explaining underlying load forecast assumptions for available transfer capability calculations and actual peak load. This will improve transparency for customers and allows them to validate available transfer capability calculations.
13. As to the minor corrections that the NAESB Executive Committee filed with the Commission on May 29, 2009 and October 9, 2009, the Commission agrees with NAESB that these corrections are non-substantive errata corrections, and we will incorporate these corrections by reference to ensure the standards we adopt are as accurate and up-to-date as possible.
14. The specific NAESB standards that we are incorporating by reference in this Final Rule are:
• Open Access Same-Time Information Systems (OASIS), Version 1.5 (WEQ–001, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Open Access Same-Time Information Systems (OASIS) Standards & Communications Protocols, Version 1.5 (WEQ–002, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Open Access Same-Time Information Systems (OASIS) Data Dictionary, Version 1.5 (WEQ–003, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Coordinate Interchange (WEQ–004, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Area Control Error (ACE) Equation Special Cases (WEQ–005, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Inadvertent Interchange Payback (WEQ–007, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Transmission Loading Relief—Eastern Interconnection (WEQ–008, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Gas/Electric Coordination (WEQ–011, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Public Key Infrastructure (PKI) (WEQ–012, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009); and
• Open Access Same-Time Information Systems (OASIS) Implementation Guide, Version 1.5 (WEQ–013, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009).
15. The NAESB WEQ approved the Version 002.1 Standards under NAESB's consensus procedures.
16. The Commission will require public utilities to modify their open access transmission tariffs (OATTs) to include the standards that we are incorporating by reference in this Final Rule. In the past, to reduce the filing burden, we allowed public utilities to postpone making a separate tariff filing making this tariff modification and allowed them to include this revision as part of an unrelated subsequent tariff filing.
17. The following sections address the issues raised by the commenters.
18. In Order No. 890, we directed public utilities, working through NERC reliability standards and NAESB business practices development processes, to produce workable solutions to complex and contentious issues surrounding improving the consistency and transparency of available transfer capability calculations.
19. NAESB developed Standard 001–13.1.5, which provides for an ATC Information Link on OASIS, in close coordination with the NERC available transfer capability drafting team. Standard 001–13.1.5 replaces NERC MOD–003, which NERC and NAESB determined were better classified as business practice standards than reliability standards.
20. In the WEQ Version 002.1 NOPR, the Commission proposed to incorporate by reference Standard 001–13.1.5, which provides for an ATC Information Link on OASIS and requires Transmission Providers to post links to their Available Transfer Capability Implementation Document, Capacity Benefit Margin Implementation Document, and Transmission Reserve Margin Implementation Document (as specified in NERC reliability standards MOD–001–1, MOD–004–1, and MOD–008–1, respectively). Under NERC Standard MOD–001–1 R3.2, the Available Transfer Capability Implementation Document must include a “description of the manner in which the Transmission Service Provider will account for counterflows.”
21. In addition, the Commission made clear in the WEQ Version 002.1 NOPR that it expected that the provision in Standard 001–13.1.5 affording Transmission Providers the ability to redact sensitive information would be implemented by Transmission Providers subject to the OATT in a manner consistent with the Transmission Provider's obligation to make that information available to those with a legitimate need to access the information, subject to appropriate confidentiality restrictions.
22. Several commenters
23. TAPS
24. EPSA is critical of Standard 001–13.1.5. EPSA comments that the standard affords transmission providers the ability to redact certain information due to market, security or reliability sensitivity concerns, but provides no definition or guidance as to what constitutes such concerns, thereby allowing transmission providers the flexibility to post whatever information they so choose.
25. EPSA also argues that Standard 001–13.1.5 results in a “fill-in-the-blank” standard governing the treatment of counterflows. EPSA claims that the standard will result in different calculation methodologies by different transmission providers. Because Standard 001–13.1.5 permits transmission providers to redact information due to market, security, or reliability sensitivity concerns, EPSA also contends that transmission providers will have unfettered discretion with respect to their obligations to post the methodology that they use to account for counterflows.
26. APS requests that the Commission clarify that the Implementation Documents and Postback Methodology in the NAESB and NERC standards fulfill the requirements and detail specified in Order No. 890 for Attachment C. If the Commission does not believe that the Implementation Documents and Postback Methodology from the NERC and NAESB standards meet the requirements of Order No. 890 for the purpose of Attachment C, APS requests that the Commission clarify the difference between the Order No. 890 requirements and the documentation requirements found in the NERC and NAESB standards.
27. Additionally, APS asks for clarification that the statement in Order No. 890 that a “revised Attachment C to [the] Open Access Transmission Tariff (OATT) be made within 60 days of completion of the NERC and NAESB process” means that a revised Attachment C to the OATT must be filed within 60 days of the later effective date of the NERC standards or NAESB standards.
28. NAESB's Standard 001–13.1.5 represents a consensus approach agreeable to all six segments of the industry, and is not inconsistent with Commission policies. Therefore, we will incorporate the standard by reference as proposed in the WEQ Version 002.1 NOPR.
29. In response to EPSA's concerns relating to the redaction of information under Standard 001–13.1.5, we reiterate the statement we made in the WEQ Version 002.1 NOPR that we expect the provision for a transmission provider to redact sensitive information from postings to be implemented by a transmission provider subject to the OATT in a manner consistent with its obligation to make that information available to those with a legitimate need to access the information, subject to appropriate confidentiality
30. As to EPSA's argument that Standard 001–13.1.5 allows transmission providers unfettered discretion with respect to their obligations to post the methodology that they use to account for counterflows, we again emphasize that we expect transmission providers subject to the OATT to implement this standard in a manner consistent with their obligation to make any redacted information available to those with a legitimate need to access it, subject to appropriate confidentiality restrictions. Moreover, Order No. 890 did not prescribe the exact methodology to account for counterflows, nor did it find that there could only be a single acceptable methodology for determining this available transfer capability component. The NAESB standards address the posting requirements for the document. Responsibility for developing the methodology to account for counterflows rests with NERC, and not NAESB.
31. APS requests clarification that the Implementation Documents and Postback Methodology required to be posted on OASIS by Standard 001–13.1.5 fulfill the requirements and detail specified in Order No. 890 for Attachment C. The information that the Commission requires transmission providers to include in their Attachment C and the information that transmission providers are required to include in their Implementation Documents under NERC reliability standards MOD–001–1, MOD–004–1, and MOD–008–1 and Postback Methodology under NAESB Standard 001–18 (Postback Requirements) are not identical.
32. For example, some of the required components of an Attachment C include a detailed description of the specific mathematical algorithm used to calculate firm and non-firm available transfer capability/available flowgate capacity for the transmission provider's scheduling horizon, operating horizon, and planning horizon; a process flow diagram that illustrates the various steps through which available transfer capability/available flowgate capacity is calculated; and a detailed explanation of how each of the available transfer capability components (including total transfer capability, existing transmission commitments, capacity benefit margin, and transmission reserve margin) is calculated for both the operating and planning horizons. In contrast, some of the requirements of the Implementation Documents include a description of how the available transfer capability/available flowgate capacity calculation methodology is implemented; a description of how the transmission provider will account for counterflows; the other transmission providers and/or transmission operators from which a given transmission provider receives data or to which it supplies data; the procedure and assumptions that a transmission provider uses to establish capacity benefit margin; the process through which a load-serving entity can request to set aside or use capacity benefit margin; and the components used to calculate transmission reserve margin. Thus, we clarify here that the Implementation Documents and Postback Methodology are not sufficient to satisfy the requirements and detail specified in Order No. 890 for Attachment C, as the information that they require to be posted is not the same as the information that Commission requires to be included in Attachment C.
33. Moreover, the Commission has determined that it is necessary for the information presented in Attachment C to be included in the tariff, not simply to be posted on OASIS as is required of the information included in the Implementation Documents and Postback Methodology by the Standard 001–13.1.5. In Order No. 890, the Commission rejected proposals to address the transparency of available transfer capability methodology by merely referencing business practices and reliability standards. Specifically, the Commission found that because available transfer capability calculations have a direct and tangible effect on the granting of open access transmission service, “an accurate and detailed statement of the methodology and its components that defines how the transmission provider determines available transfer capability belongs in the transmission provider's OATT as the means of holding the transmission provider accountable for following non-discriminatory procedures for granting service, not in the business practices kept by the transmission provider.”
34. Lastly, we clarify that the NAESB Version 002.1 standards and the related NERC reliability standards will have the same implementation date.
35. In the WEQ Version 002.1 NOPR, the Commission proposed to incorporate by reference Standard 001–14, which was developed by NAESB to meet the requirement in Order No. 890 for transmission providers to post a narrative in instances when available transfer capability remains unchanged at a value of zero for six months or longer. In addition, the Commission also proposed to incorporate by reference Standard 001–15, which requires transmission providers to post a brief narrative that explains the reason for a change in monthly or yearly available transfer capability values on a constrained path when a monthly or yearly available transfer capability value changes as a result of a 10 percent change in total transfer capability.
36. Entergy requests that the Commission clarify that, where a transmission provider is not required to convert available flowgate capability
37. EPSA contends that Standard 001–15, while consistent with the requirements of Order No. 890, does not reflect the underlying goals of the Commission in Order No. 890.
38. In this Final Rule, we will incorporate by reference Standards 001–14 and 001–15, with the exception of Standards 001–14.1.3 and 001–15.1.2. As explained further below, we decline to incorporate Standards 001–14.1.3 and 001–15.1.2 by reference, as they permit transmission providers to post an available transfer capability change narrative within five business days of meeting the criteria under which a narrative is required to be posted, which is inconsistent with the Commission's rejection in Order No. 890 of delays in posting data.
39. In regards to Entergy's question of whether the transmission provider's calculated and posted available flowgate capability values should be used to fulfill the posting requirements set forth in Standard 001–14 and 001–15 in instances where there is no requirement to convert this calculation to available transfer capability values, we agree with Entergy that this requirement can be met by the transmission provider posting its available flowgate capability values. As to EPSA's argument that Standard 001–15 falls short of the goals of Order No. 890, we find that, with the exception of Standard 001–15.1.2, compliance with Standard 001–15 provides all of the information required by Order No. 890. However, Standards 001–14.1.3 and 001–15.1.2 permit transmission providers to post an available transfer capability change narrative within five business days of meeting the criteria under which a narrative is required to be posted. In Order No. 890, the Commission rejected calls for delays prior to posting data and required posting as soon as possible.
40. In the WEQ Version 002.1 NOPR, we proposed to incorporate by reference Standard 001–16.1, which requires transmission providers to respond to questions about the methodology for calculating available transfer capability and available flowgate capability. In the NOPR, we interpreted this standard as requiring the transmission provider to provide data when necessary to respond to the methodology questions in order to be consistent with the requirement in Order No. 890 that transmission providers must, upon request, “make available all data used to calculate [available transfer capability] and [total transfer capability] for any constrained paths and any system planning studies or specific network impact studies performed for customers.”
41. TAPS supports the Commission's interpretation of the proposed business practices for the disclosure of available transfer capability and transmission service related data. It also supports the Commission's pro-transparency interpretation of NAESB Standard 001–16.1 which requires transmission providers to provide data used to calculate available transfer capability and total transfer capability for any constrained path upon request. TAPS states that timely access to available transfer capability and service request information and a transparent and accurate available transfer capability calculation process will encourage competition.
42. Standard 001–16.1 represents a consensus approach agreeable to all six segments of the industry, and, as we interpret the standard, is not inconsistent with Commission policies. Therefore, as proposed in the WEQ Version 002.1 NOPR, we will incorporate Standard 001–16.1 by reference into our regulations. We reiterate our interpretation of this standard, as described in the WEQ Version 002.1 NOPR. We expect that transmission providers will implement this standard in a manner consistent with the requirement in Order No. 890 that transmission providers must, upon request, “make available all data used to calculate [available transfer capability] and [total transfer capability] for any constrained paths and any system planning studies or specific network impact studies performed for customers”
43. Standard 001–17 is one of the standards that NAESB developed in response to Order No. 890 and addresses the obligations of transmission providers and ISOs and RTOs to post information concerning their actual and forecasted peak load.
44. Several of EPSA's comments relate to the actual and forecasted load posting requirements described in Standard 001–17. EPSA contends that Standard 001–17.2.1, Standard 001–17.4.1, and
45. Standard 001–17 represents a consensus approach agreeable to all six segments of the industry. Contrary to EPSA's representations, we find that this standard satisfies the requirement in Order No. 890 to post load forecasts and actual daily peak load.
46. In Order No. 890, the Commission required transmission providers to post their load forecasts and actual daily peak load for both system-wide load (including native load) and native load,
47. Therefore, we will incorporate Standard 001–17 by reference into our regulations.
48. In response to Order No. 890,
49. TranServ recommends that all transmission providers should be required to post a list of the grandfathered agreements that are factored into their available transfer capability methodology, as is required of transmission providers using the Flowgate Methodology under Standard 001–19.1.2. TranServ argues that the requirement to post a single aggregate MW value representing the impact of all grandfathered agreements on available transfer capability has little additional value, and that those transmission providers using Flowgate Methodology may have difficulties identifying the specific impacts of grandfathered agreements from the aggregate impacts of network and native load service on their transmission system.
50. EPSA contends that the requirement to post a single aggregate MW value for all grandfathered agreements provides insufficient transparency, particularly as grandfathered agreements represent allocations of transmission capacity that pre-date the open access environment and may include non-standard provisions. Thus, transmission providers may need to make accommodations to incorporate these commitments into the current structure of OASIS reservations and available transfer capability calculations. To promote transparency, EPSA argues that the standard should require information concerning the duration, MW capacity and the associated point of receipt/point of delivery and source/sink combinations, the resulting allocation of the contract provisions to specific transmission interfaces, and the resulting calculation of the available transfer capability/available flowgate capability associated with each contract.
51. One of the Commission's objectives in Order No. 890 was to reduce the potential for transmission providers to unduly discriminate when they provide transmission service by limiting their discretion to calculate available transfer capability using unknown assumptions and methodologies.
52. As we pointed out in the NOPR, the NAESB standards adopt two different methods of posting grandfathered agreements, depending on whether the flowgate methodology is used. Because of the nature of the flowgate methodology, the standards exempt it from the requirement to post an aggregate MW value that can be viewed and queried using the system data template. Instead, the standards require the transmission provider to post a list of grandfathered agreements with MW values that are expected to be scheduled or expected to flow. Transmission providers using available transfer capability calculation methodologies other than the flowgate methodology are required to make this data accessible through the system data template.
53. EPSA and TranServ argue that the complete data on grandfathered agreements needs to be provided even for those systems that do not utilize the flowgate methodology. Order No. 890 does not require the posting of complete data for grandfathered agreements. It required only that grandfathered agreements be included in the Existing
54. Standard 001–16.1 requires Transmission Providers to respond to questions about the methodology for calculating available transfer capability and available flowgate capability. In the WEQ Version 002.1 NOPR, we stated that we interpreted this standard as requiring the Transmission Provider to provide data when necessary to respond to the methodology questions in order to be consistent with the requirement in Order No. 890 that transmission providers must, upon request, “make available all data used to calculate [available transfer capability] and [total transfer capability] for any constrained paths and any system planning studies or specific network impact studies performed for customers.”
55. EPSA is concerned that there is a lack of transparency for the data items used in available transfer capability calculations, and contends that this issue was not adequately addressed through the NAESB process. Specifically, EPSA urges the Commission to require not only that data be made available, but that all underlying data supporting available transfer capability calculations be required to be posted.
56. Standard 001–16.1 represents a consensus approach agreeable to all six segments of the industry, and satisfies the requirement in Order No. 890 to make data used in available transfer capability calculations available. Therefore, as proposed in the WEQ Version 002.1 NOPR, we will incorporate Standard 001–16.1 by reference into our regulations. As described above, we interpret Standard 001–16.1 as requiring the Transmission Provider to provide data when necessary to respond to the methodology questions in order to be consistent with the requirement in Order No. 890 that transmission providers must, upon request, “make available all data used to calculate [available transfer capability] and [total transfer capability] for any constrained paths and any system planning studies or specific network impact studies performed for customers.”
57. In the OASIS Standards, NAESB has included a number of standards that support conditional firm service as envisioned by the Commission in Order Nos. 890 and 890–A. NAESB has developed business practice standards to facilitate the implementation of conditional firm service, relying on the Commission's description of the attributes of that service in Order No. 890.
58. Additionally, NAESB has developed other standards related to conditional firm service in response to the Commission's requests for the development of specific standards in Order Nos. 890 and 890–A.
59. The following addresses the comments received on these proposals.
60. Standard 001–11.3.2 governs the conditions under which multiple transmission service reservations may be aggregated to support a resale of transmission service. Under Standard 001–11.3.2, transmission service reservations subject to the terms of a Conditional Curtailment Option
61. In their comments, both AWEA and EPSA argue that there is no basis for treating resales of conditional firm service differently from resales of other long-term firm service.
62. We will incorporate by reference into our regulations NAESB's revisions to Standard 001–11.3.2. NAESB's standard does not preclude the resale of conditional firm service. Such service can be resold as separate transactions. Unlike other types of long-term firm service, the conditions imposed in a conditional firm reservation are specific to the reservation, identified in the system impact study, and documented in the service agreement. The service agreement is a customer-specific, non-conforming agreement that must be filed with the Commission for review and approval.
63. NAESB has developed Standard 001–21.1.6 in response to Order No. 890, in which the Commission directed transmission providers to work through NAESB to develop appropriate communication protocols to assign short-term firm service to conditional firm customers as the service becomes
64. In its comments, AWEA is concerned about the ability to interpret this standard in various ways, and suggests modifications to the standard to ensure that short-term firm capability is not double counted.
65. AWEA is also apprehensive that the proposed NAESB standard does not address an important aspect of the Conditional Curtailment Option: How new long-term available transfer capability will be allocated to Conditional Curtailment Option customers when it becomes available.
66. Standard 001–21.1.6 is consistent with the Commission's directive in Order No. 890
67. Both EPSA and AWEA are concerned that available transfer capability will not be properly decremented to reflect the assignment of short-term firm service to conditional firm customers. AWEA suggests that the standard should be modified to ensure that double-counting does not occur.
68. As to the concerns raised over how new long-term available transfer capability will be allocated to conditional firm customers when it becomes available, as AWEA recognizes, in Order No. 890, the Commission established that conditional firm customers have priority relative to short term firm capability, and did not provide such priority with respect to long term firm capability. AWEA did not raise this issue in the Order No. 890 proceeding, and if it seeks a change to the priority order established in the rule, it should do so through an appropriate filing with the Commission. Since NAESB's standard complies with the requirement of Order No. 890, we are adopting it here.
69. NAESB developed Standards 001–21 through 001–21.5.5 to facilitate the implementation of conditional firm service, relying on the Commission's description of the attributes of that service in Order No. 890. In its discussion of conditional firm service, the Commission specified that transmission providers shall have the right to perform a biennial
70. Bonneville raises objections to the incorporation by reference of Standard 001–21.3.1.2, which allows a transmission provider to waive its right to perform a biennial reassessment. Bonneville states that Standard 001–21.3.1.2 is inconsistent with the Commission's policy. Bonneville argues that the standard should allow a Transmission Provider the right to extend its reassessment of the conditions for conditional firm service. Bonneville proposes to modify the NAESB standard so that it permits transmission providers to extend their right to perform the biennial reassessment as well as to waive such right.
71. Nothing in Standard 001–21.3.1.2 prevents a Transmission Provider from extending its right to reassess the availability of conditional firm service. The standard states that a transmission provider is permitted to waive its right to conduct a biennial reassessment, not that a transmission provider is prohibited from extending the assessment period. Thus, we do not find the requirements of this standard inconsistent with the requirement in Order No. 890 that a transmission provider may extend its right to reassess the availability of conditional firm service and, as proposed in the WEQ Version 002.1 NOPR, will incorporate Standard 001–21.3.1.2 by reference into our regulations.
72. However, we reiterate here the Commission's finding in Order No. 890 that a transmission provider is permitted to extend its right to reassess the availability of conditional firm service.
73. As part of the overall Version 002.1 Standards, the Commission proposed to incorporate by reference
74. Entergy seeks Commission clarification on whether this standard requires the posting of any curtailment of conditional firm service actually be made “prior to or coincident with” the implementation of the curtailment, in light of the difficulty of making such postings while managing the reliability of the transmission system in a congested situation. Entergy urges the Commission to clarify that the same posting requirements currently in the regulations at 18 CFR 37.6(e)(3) are appropriate for posting curtailments of conditional firm service.
75. Both AWEA and EPSA contend that the standards governing the provision of conditional firm service lack adequate transparency due to a deficiency of posting requirements regarding system conditions. Under a conditional curtailment option subject to the systems-condition criteria, conditional firm service can be curtailed based on pre-identified system conditions. To inform their business decisions and to evaluate the firmness of their reservation at any given time, AWEA and EPSA argue that transmission customers taking conditional firm service require the maximum amount of information practical as to the risk that their service will be curtailed. Therefore, AWEA and EPSA claim that transmission providers should be required to post information pertaining to the system conditions in effect at any given time, even if the event of a single condition alone will not reduce the priority of the service to non-firm.
76. Standard 001–21.4.2.1 represents a consensus approach agreeable to all six segments of the industry, and is not inconsistent with Commission policies. Therefore, as proposed in the WEQ Version 002.1 NOPR, we will incorporate Standard 001–21.4.2.1 by reference into our regulations. As to Entergy's contention that Standard 001–21.4.2.1 should allow postings consistent with 18 CFR 37.6(e)(3), we note that 18 CFR 37.6(e)(3) does not include any specific time requirements for the posting. We believe that the timing of when information must be posted is an important element in providing for transparency and accountability surrounding the provision of conditional firm service. Revising the standards to remove any requirement as to when information must be posted would severely diminish the achievement of both of those goals. Thus, we will require the posting to be made “prior to or coincident with” as provided in the standard.
77. As to the concern raised by AWEA and EPSA about the lack of transparency regarding the conditions leading to curtailments, these commenters failed to persuade a majority of NAESB members to adopt their requests to impose posting obligations that exceed the requirements of Order No. 890. The requested postings would appear to impose a continuous burden on transmission providers which, in light of the non-curtailment status of the system for most of the time intervals, does not appear to be warranted. Given that the current NAESB standard satisfies the Order No. 890 requirements, we will incorporate the standard by reference.
78. NAESB developed and adopted Standard 001–21.5.2.1 as part of its response to the Commission's directive in Order No. 890 to implement conditional firm service; it provides that redirects of conditional firm service do not affect the conditions applicable to the parent reservation.
79. When the evaluation of a request for a redirect of conditional firm service indicates that such redirected service can be provided without conditions, Entergy requests clarification that under Standard 001–21.5.2.1 “such service may be granted without the application of conditions so long as conditions are retained on the Parent Reservation.”
80. Standard 001–21.5.2.1 represents a consensus approach agreeable to all six segments of the industry, and is not inconsistent with Commission policies. Therefore, as proposed in the WEQ Version 002.1 NOPR, we will incorporate Standard 001–21.5.2.1 by reference into our regulations, as we proposed in the WEQ Version 002.1 NOPR. As to Entergy's request for clarification, we find no reason why the condition should apply if the evaluation of a request for redirect of conditional firm service shows that such redirected service can be provided without conditions. We note, however, that under Standard 001–21.5.2.1, the condition would remain on the parent reservation.
81. EPSA contends that there is no standard governing the treatment of conditional firm service in available transfer capability calculations or requiring transmission providers to post the methodology that they use to account for conditional firm service in these calculations. Thus, EPSA argues that the Version 002.1 Standards give the transmission provider too much discretion.
82. We agree with EPSA that the Version 002.1 standards do not provide a uniform methodology for treating conditional firm service in available transfer capability calculations. But Order No. 890 did not request NAESB to develop the methodology for transfer capability calculations. NERC has developed Standard MOD–001–1 which requires that the Available Transfer Capability Implementation Document (required by NAESB Standard 001–13.1.5 to be posted on OASIS) includes
83. NAESB revised Standard 001–4.16 to complement the Commission's policies regarding pre-confirmed transmission service requests,
84. The issue raised in the comments relates to whether daily network service can preempt short-term firm service under Standard 001–4.16. This standard includes Table 4–3, which illustrates the relative queue priorities of competing transmission service requests and reservations. In addition, the table describes the conditions under which a subsequent request can preempt a previously queued request or reservation, as well as the rules for offering a right-of-first-refusal.
85. Two previously adopted standards also address the queue priority for non-firm transmission service requests,
86. TranServ claims that, under Table 4–3, a request for designation of a new network resource for a single day could potentially preempt all confirmed (but conditional) short-term firm point-to-point reservations, and that those transmission customers whose reservations were displaced would be unable to retain their service. TranServ suggests that designation of a new network resource for terms less than 12 months should be considered for preemption on a par with point-to-point services. At a minimum, it argues that requests to designate a new network resource should be eligible to preempt only those point-to-point reservations of equal or shorter duration. In addition, TranServ requests Commission guidance as to whether longer term point-to-point requests should have any rights to preempt a shorter term network resource designation and whether a transmission customer whose point-to-point reservation has been displaced by a longer term request to designate a network resource has a right-of-first-refusal to modify its request to match the requested longer duration of the competing service request so it can retain its service priority.
87. In its reply comments, APS opposes TranServ's proposal to allow point-to-point services the same queue priority as network customers, contending it diminishes the value of network service, which is a long term service, to be on par with that of shorter term point-to-point service requests.
88. TranServ also notes that while confirmed but conditional short-term firm reservations may be preempted based on price, confirmed non-firm reservations and unconfirmed (but within the Customer Confirmation Time Limit) non-firm requests in response to which the transmission provider has offered service may not be preempted by subsequent requests based on price, as described in Standards 001–4.22 and 001–4.25. TranServ requests that the Commission advise the industry as to whether this disparate treatment of firm and non-firm service with regard to preemption based on price should be eliminated from the standards. Specifically, TranServ asks if Table 4–3 should be revised to include the preemption of non-firm reservations based on price and if Standards 001–4.22 and 001–4.25 should be removed.
89. TranServ's comments raise two separate arguments. First, TranServ argues that daily network service should not displace short-term firm reservations while those requests are still conditional. Standard 001–4.16 and Table 4–3, which govern the queue priorities of competing transmission service requests and reservations, reflects the Commission's policies articulated in Order No. 890,
90. Because the priority of network service of any duration is higher than that of short-term firm service, it will preempt short-term firm service during the conditional reservation period even if the short-term firm service is of longer duration. Therefore, the queue priority described in Standard 001–4.16 and Table 4–3 is consistent with the
91. Second, TranServ contends that previously adopted standards should be modified to allow non-firm reservations to be preempted based on price. It argues that the same pricing rules that apply to firm services, which permit preemption based on price during the conditional reservation period, also should apply to non-firm service.
92. We note that the standards in question, Standards 001–4.22 and 001–4.25 (governing the queue priority for non-firm transmission service requests), were incorporated by reference in Order No. 676,
93. In addition, we note that these standards are consistent with the
94. In the WEQ Version 002.1 NOPR, the Commission proposed to incorporate by reference new and modified standards that relate to rollover rights. The Commission recognized that the filed NAESB standards represented only the first part of a two part process through which NAESB will fully develop standards that are consistent with the Commission's policy on rollover rights as articulated in Order Nos. 676, 890, and 890–A. In the Version 002.1 Standards submitted to the Commission as part of the first part of the aforementioned two part process, NAESB included a new definition for Unexercised Rollover Rights in WEQ–001, as well as other modifications to existing standards in WEQ–001, WEQ–003, and WEQ–013. In its Version 002.1 filing letter of February 19, 2009, NAESB stated that the second part of this process would include modifications to Standard 001–9.7, as directed by Order No. 890. NAESB also indicated that it anticipates that the results of the second part of the process will be included in a new Version 002.2 set of business practice standards, which NAESB expects will be published in the first quarter of 2010.
95. Two commenters requested that the Commission not incorporate by reference standards related to rollover rights for redirects.
96. We recognize that the standards relating to rollover rights for redirects included in the Version 002.1 Standards represent only the first part of a two-part process. In addition, we understand that both Duke and IRC are concerned that the standards currently before the Commission have been substantially revised in the second part of the two part process. However, neither Duke nor IRC has expressed any substantive concerns with the standards currently before the Commission, or offered any suggested alternative to the filed standards. Given these circumstances and because we find no inconsistency between the standards governing rollover rights for redirects of transmission service in the Version 002.1 Standards and Order No. 890 and the Commission's regulations, we will incorporate these standards by reference. We expect that should Duke, IRC, or any other party have concerns with the standards being developed during the second part of the process that they will be able to raise these concerns within the NAESB process and work to achieve a consensus solution acceptable to all industry segments. We reserve judgment on any phase two standards governing rollover rights for redirects of transmission service until such time as these standards are developed and filed with the Commission for review.
97. Standard 002–5.10 requires that all template interactions with OASIS be updated to reflect the Version 1.5 OASIS standards within six months of the Version 002.1 Standards becoming effective.
98. Entergy requests clarification that Standard 002–5.10 is applicable only to the actual implementation of updated templates and not to the additional required OASIS functionalities proposed in the Version 002.1 Standards, which may require modification to or development of supporting software applications.
99. The Commission will grant the requested clarification. The Commission finds that Standard 002–5.10 is applicable only to the actual implementation of updated templates and not to the additional required OASIS functionalities proposed in the Version 002.1 Standards, which may require modification to or development of supporting software applications. As discussed in the Implementation section
100. In the WEQ Version 002.1 NOPR, the Commission recognized that a specific standard, Standard 001–13.1.2, contained references to Commission regulations regarding the posting of Standards of Conduct-related information. These regulations were revised by Order No. 717.
101. Duke
102. We addressed this concern in the WEQ Version 002.1 NOPR, in which we stated that “we do not propose to require public utilities to comply with any portion of the standard that requires information to be posted in a manner inconsistent with Order No. 717.” While this statement related directly to Standard 001–13.1.2, we clarify here that we will not require public utilities to comply with any portion of the Version 002.1 standards that requires information to be posted in a manner inconsistent with Order No. 717.
103. In Order No. 890, the Commission directed transmission providers, working through NAESB, “to develop business practice standards related to coordination of requests across multiple transmission systems.”
104. North Carolina Electric Membership Cooperative (NCEMC) urges the Commission to monitor closely NAESB's progress on developing standards for the coordination of transmission service requests across multiple transmission systems, including requiring status reports as appropriate. NCEMC argues that they have experienced difficulties when trying to conduct transactions across two transmission providers' systems. Because this issue was originally addressed by the Commission in response to comments filed by TDU Systems almost three years ago, NCEMC believes that it is necessary for the Commission to exert more pressure on NAESB to develop this standard, as they have yet to begin drafting it.
105. We agree that insufficient progress has been made on this issue. While we acknowledge that development of standards addressing this issue is included in NAESB's 2009 WEQ Annual Plan,
106. NYISO asks the Commission to take the opportunity to reconsider its position regarding the process for filing waivers. NYISO states that it currently is required to make a waiver filing every time the Commission incorporates a revised NAESB standard. It asks the Commission to revise this process so that recipients of waivers only need to file requests to renew their waivers when NAESB adopts (and the Commission incorporates by reference) new standards or revises existing ones in a substantive way. NYISO argues that tracking, analyzing and making frequent waiver filings are burdensome tasks and do not benefit NYISO.
107. When the Commission adopts new requirements, it is incumbent on a public utility that wishes to maintain an existing waiver to making a showing to the Commission that, based on the particular facts at issue, the waiver should continue. The determination of whether a waiver from a prior requirement should apply to a revised requirement is one that needs to be made on a case-by-case basis. We do not agree that waivers should automatically be extended without Commission review and approval. Accordingly, we deny NYISO's request.
108. NERC Standard MOD–030–02 R11 provides definitions of Available Flowgate Capacity and Total Flowgate Capability and a formula to convert Available Flowgate Capacity to Available Transfer Capability. In Order No. 890, the Commission directed public utilities, working through NERC, to develop in the MOD–001 standard a rule to convert available flowgate capacity into available transfer capability values.
109. TranServ comments they are not in support of posting of flow-based Available Flowgate Capacity and the related transmission system metrics used to convert Available Flowgate Capacity to an effective Available Transfer Capability. It seeks clarification on how the requirements of 18 CFR 37.6 to post Available Transfer Capability, Total Transfer Capability, Capacity Benefit Margin and Transmission Reliability Margin are to be addressed by a Transmission Provider selecting to use the Flow-based Available Transfer Capability Methodology as specified in NERC Standard MOD–030. It further states there is no guidance on how the Transmission Provider is to convert a
110. Responsibility for developing an acceptable formula to convert available flowgate capacity to available transfer capability rests with NERC, and not NAESB. Our focus in this rulemaking is to evaluate NAESB's revised business practice standards, and the comments filed in response to our NOPR, to determine whether we should incorporate NAESB's revised standards by reference into our regulations. Thus, we find that this issue is beyond the scope of this proceeding.
111. While NRECA and APPA
112. Additionally, NRECA and APPA claim that the Commission has taken the National Technology Transfer and Advancement Act of 1995 (NTT&AA) out of context, as it applies to practices regarding federal procurement contracts and places no affirmative obligations on agencies outside of that context.
113. Therefore, they contend that the Commission can and should reproduce the content of the standards in order to provide for greater transparency and compliance.
114. To address these issues, NRECA and APPA recommend that the Commission “(1) cease incorporating NAESB standards by reference into the
115. When the Commission first began to establish technical standards for communication protocols and business practices for the gas and electric industries, the Commission sponsored technical conferences and meetings at which all industry participants were entitled to participate. For example, when the Commission sponsored the process leading up to the OASIS standards adopted in Order No. 889, it relied on two ad hoc committees comprised of volunteers who offered to host and conduct their own meetings, open to participants from various industry sectors and attended by staff observers, to seek consensus on proposed OASIS standards. These committees had no formal structure or voting rules.
116. The NAESB process for both the gas and electric industries resulted in streamlining the standards development process and making it more efficient by creating regularized procedures and voting rules. Under the NAESB approved ANSI consensus procedures, each industry segment is represented and it is no longer necessary for all participants to attend conferences at the Commission in order to ensure their votes are heard. They can now participate either directly or indirectly through their industry representatives at NAESB. From our experience, the NAESB process is far more efficient and cost effective method of developing technical standards for the industries involved than the use of a notice and comment rulemaking process involving numerous technical conferences in Washington that all believe they have to attend.
117. While the NAESB process includes numerous volunteers from the industries, NAESB incurs administrative expenses which it must cover. Membership dues and fees for obtaining standards provide a reasonable means of obtaining the necessary revenue stream.
118. In choosing to take advantage of the efficiency of the NAESB process, we followed the government regulations that require the use of incorporation by reference. These rules appropriately balance the interest of the standards organization and the expediency of governmental use of privately developed standards. Under section 552(a) of title 5, material may be incorporated by reference when such material is reasonably available to the public. Under the regulations adopted by the
119. The
120. Indeed, OMB Circular A–119 requires government agencies incorporating privately developed standards to “observe and protect the rights of the copyright holder and any other similar obligations.”
121. Nor do we find that the need for public utilities to obtain standards to comply with Commission regulations is a sufficient reason to reconsider the Commission's reliance on the NAESB process. Public utilities must incur numerous fees as a cost of doing business, including the payment of Commission annual charges, the filing of mandated reports and forms, and the costs incurred in having to maintain those records. As to commenters' argument that the Commission has misinterpreted section 12d of the NTT&AA, we find that the Act and the accompanying regulations are not limited to procurement specifications, as suggested in the comments, but include adoption of standards “as a means to carry out policy objectives or activities.”
122. OATI
123. APS argues that because the postings for the ATC Information Link and Postback Requirements relate to the Implementation Documents required by the NERC standards, there should not be an effective requirement to post items related to these documents prior to the date on which the underlying NERC rules take effect. Therefore, APS requests that the requirements of Standards 001–18 through 001–18.2 have the same effective date as the NERC available transfer capability related standards.
124. Entergy argues that because Standards 001–13.1.5, 001–14.1, and 001–15.1 relate to, and potentially depend on, the NERC reliability standards, the Commission should consider the need to coordinate the effective dates of these two sets of standards.
125. While Entergy acknowledges the difficulty of developing a single industry methodology for implementing Standard 001–21.1.6, because Entergy believes that it does not provide significant guidance as to how transmission providers should implement this standard, Entergy argues that its implementation will require significant software development. To address this issue, Entergy asks that the Commission set the effective date of this provision to coincide with the date at which the OASIS vendors will have developed the appropriate software modifications necessary to implement this standard.
126. In light of the time needed to plan and complete the complex tasks involved in implementing the standards we are adopting in this Final Rule, as well as the desirability of aligning the implementation of the requirements in these standards that relate to the NERC standards being adopted in Docket No. RM08–19–000, we will make the implementation date for compliance with the NAESB standards we are incorporating by reference in this Final Rule coincident with the implementation date applicable to the NERC reliability standards that the
127. However, as we stated above, a revised Attachment C to the OATT must be filed on or before 275 days after approval of the NERC Reliability Standards being addressed in Docket No. RM08–19–000 by all applicable regulatory authorities.
128. Consistent with our regulation at 18 CFR 35.28(c)(vi), each electric utility must revise its OATT to include the Version 002.1 WEQ standards that we are incorporating by reference herein. For standards that do not require implementing tariff provisions, the Commission will allow the utility to incorporate the WEQ standard by reference in its OATT. Moreover, as we proposed in the WEQ Version 002.1 NOPR, to lighten the burden associated with a stand-alone filing of a revised tariff reflecting the standards incorporated by reference in this Final Rule, we are giving public utilities the option of including these changes as part of an unrelated tariff filing, provided that the revised tariff is filed with the Commission at least ninety days before the prescribed date for compliance with the revised standards (the first day of the first quarter occurring 365 days after approval of the referenced Reliability Standards by all applicable regulatory authorities). In addition, consistent with our prior practice, if a public utility fails to file the required tariff revisions prior to the compliance date, it nonetheless must abide by these standards even before it has updated its tariff to incorporate these changes.
129. If adoption of these standards does not require any changes or revisions to existing OATT provisions, public utilities may comply with this rule by adding a provision to their OATTs that incorporates the standards adopted in this rule by reference, including the standard number and Version 002.1 to identify the standard. To incorporate these standards into their OATTs, public utilities must use the following language in their OATTs:
• Open Access Same-Time Information Systems (OASIS), Version 1.5 (WEQ–001, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009), with the exception of Standards 001–0.1, 001–0.9 through 001–0.13, 001–1.0, 001–9.7, 001–14.1.3, and 001–15.1.2;
• Open Access Same-Time Information Systems (OASIS) Standards & Communications Protocols, Version 1.5 (WEQ–002, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Open Access Same-Time Information Systems (OASIS) Data Dictionary, Version 1.5 (WEQ–003, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Coordinate Interchange (WEQ–004, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Area Control Error (ACE) Equation Special Cases (WEQ–005, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Manual Time Error Correction (WEQ–006, Version 001, October 31, 2007, with minor corrections applied on Nov. 16, 2007);
• Inadvertent Interchange Payback (WEQ–007, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Transmission Loading Relief—Eastern Interconnection (WEQ–008, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Gas/Electric Coordination (WEQ–011, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
• Public Key Infrastructure (PKI) (WEQ–012, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009); and
• Open Access Same-Time Information Systems (OASIS) Implementation Guide, Version 1.5 (WEQ–013, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009).
130. If a public utility requests waiver of a standard, it will not be required to comply with the standard until the Commission acts on its waiver request. Therefore, if a public utility has obtained a waiver or has a pending request for a waiver, its proposed revision to its OATT should not include the standard number associated with the standard for which it has obtained or seeks a waiver. Instead, the public utility's OATT should specify those standards for which the public utility has obtained a waiver or has pending a request for waiver. Once a waiver request is denied, the public utility will be required to include in its OATT the standard(s) for which waiver was denied.
131. Office of Management and Budget Circular A–119 (section 11) (February 10, 1998) provides that when a federal agency issues or revises a regulation containing a standard, the agency should publish a statement in the Final Rule stating whether the adopted standard is a voluntary consensus standard or a government-unique standard. In this rulemaking, the Commission is incorporating by reference voluntary consensus standards developed by the WEQ.
132. OMB's regulations in 5 CFR 1320.11 (2005) require that it approve certain reporting and recordkeeping requirements (collections of information) imposed by an agency. Upon approval of a collection of information, OMB assigns an OMB control number and an expiration date. Respondents subject to the filing requirements of this Final Rule will not be penalized for failing to respond to this collection of information unless the collection of information displays a valid OMB control number.
133. This Final Rule will affect the following existing data collections: Standards for Business Practices and Communication Protocols for Public Utilities (FERC–717) and Electric Rate Schedule Filings (FERC–516).
134. The following burden estimate is based on the projected costs for the industry to implement revisions to the WEQ Standards currently incorporated by reference into the Commission's regulations at 18 CFR 38.2 and to implement the new standards adopted by NAESB that we are incorporating by reference in this Final Rule.
(Reporting and Recordkeeping, (if appropriate)) = 6336 hours.
Information Collection Costs: The Commission projects the average annualized cost for all respondents to be the following:
135. The Commission sought comments on the burden of complying with the requirements imposed by these requirements. No comments were filed addressing the reporting burden.
136. The Commission's regulations adopted in this rule are necessary to establish a more efficient and integrated wholesale electric power grid. Requiring such information ensures both a common means of communication and common business practices that provide entities engaged in the wholesale transmission of electric power with timely information and uniform business procedures across multiple transmission providers. These requirements conform to the Commission's goal for efficient information collection, communication, and management within the electric power industry. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements.
137. OMB regulations
138. These changes will ensure that potential customers of open access transmission service receive access to information that will enable them to obtain transmission service on a non-discriminatory basis, will assist the Commission in maintaining a safe and reliable infrastructure and also will assure the reliability of the interstate transmission grid. The implementation of these standards and regulations is necessary to increase the efficiency of the wholesale electric power grid.
139. The information collection requirements of this Final Rule are based on the transition from transactions being made under the Commission's existing business practice standards to conducting such transactions under the proposed revisions to these standards and to account for the burden associated with the new standard(s) being proposed here.
140.
141. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, Attn: Michael Miller, Office of the Executive Director, 888 First Street, NE., Washington, DC 20426, Tel: (202) 502–8415/Fax: (202) 273–0873, E-mail:
142. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human
143. The actions required by this Final Rule fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of electric power that requires no construction of facilities.
144. The Regulatory Flexibility Act of 1980 (RFA)
145. The Commission has followed the provisions of both the RFA and the Paperwork Reduction Act on potential impact on small business and other small entities. Specifically, the RFA directs agencies to consider four regulatory alternatives to be considered in a rulemaking to lessen the impact on small entities: tiering or establishment of different compliance or reporting requirements for small entities, classification, consolidation, clarification or simplification of compliance and reporting requirements, performance rather than design standards, and exemptions. As the Commission originally stated in Order No. 889, the OASIS regulations now known as Standards for Business Practices and Communication Protocols for Public Utilities, apply only to public utilities that own, operate, or control transmission facilities subject to the Commission's jurisdiction and should a small entity be subject to the Commission's jurisdiction, it may file for waiver of the requirements.
146. In addition to publishing the full text of this document in the
147. From FERC's Home Page on the Internet, this information is available in the eLibrary. The full text of this document is available in the eLibrary both in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
148. User assistance is available for eLibrary and the FERC's website during our normal business hours. For assistance contact FERC Online Support at
149. This Final Rule will become effective January 4, 2010. The Commission has determined with the concurrence of the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, that this rule is not a major rule within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.
Conflict of interests, Electric power plants, Electric utilities, Incorporation by reference, Reporting and recordkeeping requirements.
By the Commission.
16 U.S.C. 791–825r, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
(a) * * *
(1) Open Access Same-Time Information Systems (OASIS), Version 1.5 (WEQ–001, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009, with the exception of Standards 001–0.1, 001–0.9 through 001–0.13, 001–1.0, 001–9.7, 001–14.1.3, and 001–15.1.2);
(2) Open Access Same-Time Information Systems (OASIS) Standards & Communication Protocols, Version 1.5 (WEQ–002, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(3) Open Access Same-Time Information Systems (OASIS) Data Dictionary, Version 1.5 (WEQ–003, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(4) Coordinate Interchange (WEQ–004, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(5) Area Control Error (ACE) Equation Special Cases (WEQ–005, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(7) Inadvertent Interchange Payback (WEQ–007, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(8) Transmission Loading Relief—Eastern Interconnection (WEQ–008, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(9) Gas/Electric Coordination (WEQ–011, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009);
(10) Public Key Infrastructure (PKI) (WEQ–012, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009); and
(11) Open Access Same-Time Information Systems (OASIS) Implementation Guide, Version 1.5 (WEQ–013, Version 002.1, March 11, 2009, with minor corrections applied May 29, 2009 and September 8, 2009).
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) Community Residential Care regulations to update the standards for VA approval of facilities, including standards for fire safety and heating and cooling systems. This rule also establishes a 12-month duration for VA approvals and would authorize provisional approval of certain facilities. Finally, this rule eliminates the statement of needed care requirement and clarifies that it is the care providers at the facility that determine the services needed by a particular veteran.
Effective Date: This amendment is effective January 4, 2010. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this rule as of January 4, 2010.
Daniel Schoeps, Office of Geriatrics and Extended Care Services (114), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; (202) 461–6763. (This is not a toll-free number.)
In a document published in the
We received two comments on the proposed rule. Both commenters fully supported the proposed rule and discussed generally the importance of VA's requirement that community residential care facilities comply with certain provisions of the National Fire Protection Association (NFPA) 101, Life Safety Code (2006 edition), and the NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 edition). We are grateful to the commenters for their submissions, and make no changes based on the comments.
This final rule amends § 17.63 to ensure that veterans who are placed in privately or publicly owned community residential care facilities are provided safe living conditions by making VA's approval contingent upon a facility's implementation of the NFPA fire safety guidelines in chapters 1–11, 32–33, 43, and Annex A of the NFPA 101, NFPA's Life Safety Code Handbook, Tenth Edition (2006 edition), and NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 edition). These documents are incorporated by reference in this final rule in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Further, the final rule amends § 17.63(a)(3) to require safe and functioning heating and cooling systems. VA intends that facilities will meet the standard for heating and cooling systems in the county, parish, or other similar jurisdiction where a facility is located. These provisions will help to ensure that veterans referred by VA to an approved facility for community care are provided with safe and comfortable living conditions.
The final rule removes the “statement of needed care” requirement in § 17.63(b) and (i)(2)(i) for veterans referred by VA to a community residential care facility. We are removing this requirement because VA does not determine or control the care that is provided to a veteran in an approved facility under this program. This amendment clarifies that VA relies on the heath care professionals employed by the facility and facility officials to determine the care that a particular veteran needs.
We are also removing § 17.64, which prescribes exceptions to VA standards for community residential care facilities that participated in VA's program prior to the effective date of regulations promulgated in 1989. There are no facilities that currently qualify for the exceptions and there are no facilities that could qualify for an exception in the future.
Regarding VA approval of facilities, we clarify that such approvals shall be for a 12-month period if all the standards in § 17.63 are met. We also clarify that VA may grant a provisional approval if the facility does not meet one or more of the standards in § 17.63, provided that the deficiencies do not jeopardize the health or safety of the residents and that the facility management and VA have agreed to a plan for correcting any deficiencies in a specified amount of time. The provisional approval provision allows VA to continue recommending facilities with temporary deficiencies when it is in the best interest of residents to do so. These amendments will help to ensure that approvals are based on current information and, given VA's practice of inspecting each facility at least once in each 12-month period, should not impose an additional burden on VA or on facilities.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by the State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local and tribal governments, or on the private sector.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives, and when regulation is necessary to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or
The economic, interagency, legal and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.
This document contains no collections of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521).
The Secretary hereby certifies that this final rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. The final rule would have an insignificant economic impact on a few small entities. The final rule would likely affect fewer than 100 of the 2,800 community residential care facilities approved for referral of veterans under the regulations. Also, the additional costs for compliance with the final rule would constitute an inconsequential amount of the operational costs of such facilities. Accordingly, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence and 64.022, Veterans Home Based Primary Care.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Incorporation by reference, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, veterans.
38 U.S.C. 501, 1721, and as stated in specific sections.
The revisions read as follows:
(a) * * *
(2) Meet the requirements of chapters 1–11, 32–33, and 43 and Annex A of the NFPA 101, the National Fire Protection Association's Life Safety Code Handbook, Tenth Edition (2006 Edition), and NFPA 101A, Guide on Alternative Approaches to Life Safety (2007 Edition). * * *
(3) Have safe and functioning systems for heating and/or cooling, as needed (a heating or cooling system is deemed to be needed if VA determines that, in the county, parish, or similar jurisdiction where the facility is located, a majority of community residential care facilities or other extended care facilities have one), hot and cold water, electricity, plumbing, sewage, cooking, laundry, artificial and natural light, and ventilation.
(a) An approval of a facility meeting all of the standards in 38 CFR 17.63 based on the report of a VA inspection and any findings of necessary interim monitoring of the facility shall be for a 12-month period.
(b) The approving official, based on the report of a VA inspection and on any findings of necessary interim monitoring of the facility, may provide a community residential care facility with a provisional approval if that facility does not meet one or more of the standards in 38 CFR 17.63, provided that the deficiencies do not jeopardize the health or safety of the residents, and that the facility management and VA agree to a plan of correcting the deficiencies in a specified amount of time. A provisional approval shall not be for more than 12 months and shall not be for more time than VA determines is reasonable for correcting the specific deficiencies.
(c) An approval may be changed to a provisional approval or terminated under the provisions of §§ 17.66 through 17.71 because of a subsequent failure to meet the standards of § 17.63 and a provisional approval may be terminated under the provisions of §§ 17.66 through 17.71 based on failure to meet the plan of correction or failure otherwise to meet the standards of § 17.63.
Environmental Protection Agency (EPA).
Final rule.
The EPA is determining that the Imperial County, California moderate 8-hour ozone nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. This determination is based upon certified ambient air monitoring data that show the area has monitored attainment of the 8-hour ozone NAAQS since the 2006–2008 monitoring period. In addition, quality controlled and quality assured ozone data for 2008 that are available in the EPA Air Quality System database, but not yet certified, show that this area continues to attain the 1997 8-hour ozone NAAQS. This determination suspends the requirements for California to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans for this area related to attainment of the 8-hour ozone NAAQS. These requirements shall remain suspended for so long as the area continues to attain the ozone NAAQS.
EPA has established a docket for this action under Docket Identification No. EPA–R09–OAR–2009–0188. All documents in the docket are listed on the
Wienke Tax, Air Planning Office, U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901, telephone number (415) 947–4192, fax number (415) 947–3579, electronic mail
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
EPA is determining that the Imperial County, California moderate 8-hour ozone nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. This determination is based upon certified ambient air monitoring data that show the area has monitored attainment of the 1997 ozone NAAQS since the 2006–2008 monitoring period. In addition, quality controlled and quality assured ozone data for 2009 that are available in the EPA Air Quality System (AQS) database, but not yet certified, show that this area continues to attain the ozone NAAQS.
Other specific requirements of the determination and the rationale for EPA's proposed action are explained in the Notice of Proposed Rulemaking (NPR) published on September 23, 2009 (74 FR 48495) and will not be restated here. EPA received no public comments on the NPR.
Under the provisions of EPA's ozone implementation rule (see 40 CFR 51.918), this determination suspends the requirements for the Imperial County, California moderate ozone nonattainment area to submit an attainment demonstration, a reasonable further progress plan, section 172(c)(9) contingency measures, and any other planning State Implementation Plans (SIPs) related to attainment of the 1997 8-hour ozone NAAQS for so long as the area continues to attain the 1997 ozone NAAQS.
This action does not constitute a redesignation to attainment under CAA section 107(d)(3), because the area does not have an approved maintenance plan as required under section 175A of the CAA, nor a determination that the area has met the other requirements for redesignation. The classification and designation status of the area remains moderate nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that it meets the CAA requirements for redesignation to attainment.
If EPA subsequently determines, after notice-and-comment rulemaking in the
EPA is determining that the Imperial County, California 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard and continues to attain the standard based on data through the 2009 ozone season. As provided in 40 CFR 51.918, this determination suspends the requirements for California to submit an attainment demonstration, a reasonable further progress plan, and contingency measures under section 172(c)(9), and any other planning SIP related to attainment of the 1997 8-hour ozone NAAQS for this area, for so long as the area continues to attain the standard.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action makes a determination based on air quality data, and results in the suspension of certain Federal requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more
The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply because it would be inconsistent with applicable law for EPA, when determining the attainment status of an area, to use voluntary consensus standards in place of promulgated air quality standards and monitoring procedures that otherwise satisfy the provisions of the Clean Air Act.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Under Executive Order 12898, EPA finds that this rule involves a determination of attainment based on air quality data and will not have disproportionately high and adverse human health or environmental effects on any communities in the area, including minority and low-income communities.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 19, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Region IX.
42 U.S.C. 7401
(c)
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Final rule.
PHMSA is amending the Federal pipeline safety regulations to address human factors and other aspects of control room management for pipelines where controllers use supervisory control and data acquisition (SCADA) systems. Under the final rule, affected pipeline operators must define the roles and responsibilities of controllers and provide controllers with the necessary information, training, and processes to fulfill these responsibilities. Operators must also implement methods to prevent controller fatigue. The final rule further requires operators to manage SCADA alarms, assure control room considerations are taken into account when changing pipeline equipment or configurations, and review reportable incidents or accidents to determine whether control room actions contributed to the event.
Hazardous liquid and gas pipelines are often monitored in a control room by controllers using computer-based equipment, such as a SCADA system, that records and displays operational information about the pipeline system, such as pressures, flow rates, and valve positions. Some SCADA systems are used by controllers to operate pipeline equipment, while, in other cases, controllers may dispatch other personnel to operate equipment in the field. These monitoring and control actions, whether via SCADA system commands or direction to field personnel, are a principal means of managing pipeline operation.
This rule improves opportunities to reduce risk through more effective control of pipelines. It further requires
For technical information contact: Byron Coy at (609) 989–2180 or by e-mail at
Approximately two-thirds of our domestic energy supplies are transported by pipeline. There are roughly 170,000 miles of hazardous liquid pipelines, 295,000 miles of gas transmission pipelines, and 1.9 million miles of gas distribution pipelines in the United States. Hazardous liquid pipelines carry crude oil to refineries and refined products to locations where these products are consumed or stored for later use. Hazardous liquid pipelines also transport highly volatile liquids (HVLs), other hazardous liquids such as anhydrous ammonia, and carbon dioxide. The regulations in 49 CFR part 195 apply to owners and operators of pipelines used in the transportation of hazardous liquids and carbon dioxide. Throughout this document, the term “hazardous liquid” refers to all products in pipelines regulated under part 195. In addition, the term “operator” refers to both owners and operators of pipeline facilities.
Gas transmission pipelines typically carry natural gas over long distances from gas gathering, supply, or import facilities to localities where it is used to heat homes, generate electricity, and fuel industry. Gas distribution pipelines take natural gas from transmission pipelines and distribute it to residential, commercial, and industrial customers. The regulations in 49 CFR part 192 apply to operators of pipelines that transport natural gas, flammable gas, or gas which is toxic and corrosive. Throughout this document, the term “gas” refers to all gases in pipelines regulated under part 192.
Pipelines vary from small and simple to large and complex. Pipelines often span broad geographic areas. Gas distribution pipelines may cover entire metropolitan areas, literally street-by-street. Gas transmission and hazardous liquid pipelines may traverse hundreds or thousands of miles. Equipment exists throughout pipelines that must be operated to control the safe movement of commodity. This includes pumps and compressors to provide motive force and valves that control pressure or change position to direct the flow of commodity. In many cases, parameters measuring pipeline operations, such as pressure and flow, are monitored from remote, central locations referred to as control rooms. Pipeline equipment may also be operated remotely from control rooms. The employees who monitor pipeline parameters and direct certain actions from control rooms are known as controllers.
Most pipelines are underground and operate without disturbing the environment or negatively impacting public safety. However, accidents do occur occasionally. Effective control is one key component of accident prevention.
Most operators use computer-based SCADA systems, distributed control systems (DCS), or other less sophisticated systems to gather key information electronically from field locations.
Control rooms and controllers are critical to the safe operation of pipelines. Control rooms often serve as the hub or command center for decisions such as adjusting commodity flow or facilitating an operator's initial response to an emergency. The control room is the central location where humans or computers receive data from field sensors. Commands from the control room may be transmitted back to remotely controlled equipment. Field personnel also receive significant information from the control room. In essence, the control room is the “brain” of many pipeline systems.
Errors made in control rooms can have significant effects on the controlled systems. A controller's errors can initiate or exacerbate an accident. A controller's improper action or lack of action can place undue stresses on a pipeline, which could result in a subsequent failure, the loss of service, or an increase in lost commodity and risk to people, property, the environment, and the fuel supply. On the other hand, proper controller responses to developing abnormal operating conditions or accidents can alleviate the consequences of some events, or prevent them altogether, regardless of the initial cause.
A controller must possess certain abilities, and attain the knowledge and skills necessary to complete the various tasks required for a specific pipeline system. To attain the necessary knowledge and skills, the controller is typically required to complete extensive on-the-job training and is often closely observed by an experienced controller for a period of time. The controller must also review and understand appropriate procedures, including those associated with emergency response, and repeatedly practice the correct responses to a variety of abnormal operating conditions. Pipeline operators periodically evaluate a controller's skills and knowledge through the regulatory-
Pipeline controllers must have adequate and up-to-date information about the conditions and operating status of the equipment they monitor and control if they are to succeed in maintaining pipeline safety. Incorrect, delayed, missing, or poorly displayed data may confuse a controller and lead to problems despite the extensive training, qualification, and abilities of the controller. SCADA systems perform the function of gathering this information and displaying it to the controller. Operators need to assure that SCADA systems perform this important function correctly, and that the information is displayed in a manner that facilitates controller understanding and recognition of abnormal operating conditions.
All of this must occur within an environment that facilitates appropriate and correct actions. Operators must prudently manage the factors affecting the controller. This includes relevant human factors, such as factors that can affect controller fatigue, and operator processes and procedures for managing the pipeline from the control room. PHMSA refers to the combination of all these factors as control room management. This rule requires that operators take specific actions to assure that pipeline control room management contributes to the safe operation of pipeline facilities.
On September 12, 2008, PHMSA published a notice of proposed rulemaking (NPRM) (73 FR 53076) proposing to require operators of hazardous liquid pipelines, gas pipelines, and liquefied natural gas (LNG) facilities to amend their existing written operations and maintenance procedures, OQ programs, and emergency plans to assure controllers and control room management practices and procedures are adequate to maintain pipeline safety and integrity. In summary, the NPRM proposed to revise the Federal pipeline safety regulations by:
(1) Requiring operators to amend their Operations and Maintenance Manuals to address the human factors management plan required by the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (PIPES Act (Pub. L. 109–468), Section 12).
(2) Defining the terms alarm, controller, control room, and SCADA.
(3) Requiring operators to define roles and responsibilities so that management and controllers have uniform expectations and understandings about response requirements before an abnormal operating condition or emergency arises.
(4) Requiring operators to establish procedures to facilitate controllers receiving management input in a timely manner when required.
(5) Requiring operators to assure that controllers receive the timely and necessary information they need to fulfill their responsibilities.
(6) Requiring operators to conduct an initial point-to-point baseline verification for each SCADA system to validate and document that field equipment configurations agree with computer displays.
(7) Requiring operators to record critical information during each shift.
(8) Requiring operators to include in their written procedures a limit on the length of time a controller may work and a requirement to allow time for adequate rest between shifts.
(9) Requiring two levels of alarm management review.
(10) Requiring operators to establish thorough and frequent communication between controllers, management, and field personnel when planning and implementing changes to pipeline equipment and configuration.
(11) Requiring operators to review all reportable accidents and incidents and certain other events on a routine basis to identify and correct deficiencies related to: Controller fatigue; field equipment; procedures; SCADA system configuration and performance; and training.
(12) Requiring operators to include certain content in their controller training programs. The proposed rule included a minimum set of elements that would overlap and supplement existing OQ programs.
(13) Requiring additional controller qualifications to measure or verify a controller's performance, including the prompt detection of, and appropriate response to, abnormal and emergency conditions likely to occur.
(14) Mandating that a senior executive officer validate certain aspects of controller training, qualification, and compliance with the requirements of this rule.
(15) Requiring operators to maintain records that demonstrate compliance with the regulation and to document any deviations from their control room management procedures.
The intent of the NPRM was to ensure that pipeline controllers would have the necessary knowledge, skills, abilities, and qualifications to help prevent accidents. The proposal was also intended to assure that operators would provide controllers with accurate information and the training, tools, procedures, management support, and operating environment where a controller's actions can help prevent accidents and minimize commodity losses. The requirements proposed in the NPRM were based on a controller study conducted by PHMSA that had identified areas for enhancement, an NTSB SCADA safety study, and certain mandates in the PIPES Act.
As detailed in the NPRM, PHMSA had been studying and evaluating control room operations for many years and began developing control room inspection guidance in 1999. Congress subsequently enacted the Pipeline Safety Improvement Act of 2002 (PSIA) (Pub. L. 107–355), which required a pilot program be conducted to evaluate the need for pipeline controllers to be certified through tests and other requirements. In response to the PSIA, PHMSA conducted the Controller Certification (CCERT) project study and reported its findings to Congress within a report dated December 17, 2006, entitled “Qualification of Pipeline Personnel.” This project included a comprehensive review of existing controller training, qualification processes, procedures, and practices. This review also included identifying potential enhancements to controller qualifications and control room operations, such as validation and certification processes currently used in other industries to enhance public safety. Additional information on the CCERT study may be found in the NPRM.
The NTSB conducted a safety study on hazardous liquid pipeline SCADA systems during the same period PHMSA conducted its CCERT study. While the PHMSA project addressed a wider perspective of interest, the two studies include similar findings.
The impetus of the NTSB study was a number of hazardous liquid accidents investigated by the NTSB in which there was a delay between the initial
• Display graphics.
• Alarm management.
• Controller training.
• Controller fatigue data collection.
• Leak detection systems.
While the NTSB SCADA study specifically addressed hazardous liquid pipelines, the report included an appendix of all NTSB SCADA-related recommendations since 1976, which resulted from investigations of both hazardous liquid and gas pipeline accidents. Since 1976, the NTSB has issued approximately 30 recommendations to various entities related to SCADA systems involving both hazardous liquid and gas pipeline systems. PHMSA considers the NTSB recommendations in the most-recent SCADA safety study to be applicable for both gas and hazardous liquid pipelines. The recommendations being addressed through this rulemaking are as follows:
Operators of hazardous liquid pipelines should be required to follow the API Recommended Practice 1165 (API RP 1165) for the use of graphics on the SCADA screens.
PHMSA should require pipeline companies to have a policy for the review and audit of SCADA-based alarms.
Operators should be required to include simulator or non-computerized simulations for training controllers in recognition of abnormal operating conditions, in particular leak events.
The PIPES Act introduced additional requirements for PHMSA with respect to control room management and human factors. Section 12 of the PIPES Act (codified at 49 U.S.C. 60137) requires PHMSA to issue regulations requiring each operator of a gas or hazardous liquid pipeline to develop, implement, and submit a human factors management plan designed to reduce risks associated with human factors, including fatigue, in each control room for the pipeline. The plan must include, among other things, a maximum limit on the hours of service for controllers working in a control room. PHMSA, or a state authorized to exercise safety oversight, is required to review and approve operators' human factors plans, and operators are required to notify PHMSA (or the appropriate state) of any deviations from the plan. Section 19 of the PIPES Act requires PHMSA to issue standards to implement the three recommendations of the NTSB SCADA safety study described above. This final rule fulfills requirements in sections 12 and 19 of the PIPES Act.
PHMSA received a total of 144 comments on the NPRM, including comments from trade associations, municipal operators, local distribution companies (LDC), NTSB, LNG facilities, gas transmission pipeline operators, other gas distribution pipeline operators, hazardous liquid pipeline operators, state regulators, and private citizens. In addition, PHMSA participated in two trade association meetings during the public comment period: (1) On October 14–15, 2008, at the American Petroleum Institute (API) and Association of Oil Pipelines (AOPL) forum for control room management in Houston, Texas; and (2) on October 30, 2008, at the American Gas Association (AGA) control room management workshop in Ashburn, Virginia. Summaries of PHMSA's interactions at these meetings are available in the docket. Subsequent to the public comment period, on February 12, 2009, PHMSA staff met with NTSB staff in Washington, DC to discuss NTSB's comments on fatigue mitigation. A summary of this meeting is also in the docket.
The national pipeline trade associations, consisting of the AGA, the American Public Gas Association (APGA), the API, the AOPL, and the Interstate Natural Gas Association of America (INGAA), submitted a joint comment on October 8, 2008, shortly after the NPRM was issued, suggesting the agency withdraw the proposed rule. The associations contended that the proposed rule was overly-broad, unduly burdensome, and exceeded what the associations saw as the intent of Congress. They proposed that PHMSA issue an amended proposed rule with a clear scope and revised definitions that would reflect congressional intent and input from previous public meetings, and that would incorporate available consensus standards to a greater degree.
The trade associations submitted a second letter on November 12, 2008, reaffirming their previous suggestion that the proposed rule be reissued. The second joint letter provided alternative rule language to support the associations' suggested re-issuance of the proposed rule. The letter also suggested that PHMSA provide its pipeline safety advisory committees the opportunity to vote on their suggested alternative language at a joint committee meeting scheduled for December 2008.
AGA, APGA, INGAA, and API/AOPL also individually submitted comments on the proposed rule. Other associations that submitted comments were: The National Association of Pipeline Safety Representatives (NAPSR), Northeast Gas Association (NGA), Texas Energy Coalition (TEC), Texas Oil and Gas Association (TXOGA), and Texas Pipeline Association (TPA). NGA supported AGA's comments and TEC, TXOGA, and TPA supported the joint trade associations' comments and the associated alternative regulatory language. APGA stated that the rule as written would have a disproportionately greater impact on small utilities with no offsetting benefits based on its survey that found, on average, 22 percent of small public gas system employees would be classified as controllers subject to this rule. APGA noted that the agency's Regulatory Impact Analysis (RIA) did not address adequately the impact on small entities.
NAPSR is an organization of state agency pipeline safety managers responsible for the administration of their state's pipeline safety programs. NAPSR expressed concerns about jurisdictional authority in situations where a pipeline crosses State boundaries while under the control of a control room, or where a pipeline connects to a dispatch center or communications center in another State. NAPSR proposed adopting the definitions of control room and controller in API Recommended Practice 1168 (API RP 1168) to resolve the issue of jurisdictional authority.
Comments from individual pipeline operators generally echoed the comments of the joint trade associations and the individual trade associations. Their comments mainly addressed the scope of the proposed rule. Many of these commenters were concerned with the proposed definitions of “controller” and “control room,” contending that these definitions would have the effect of making the proposed rule's scope unreasonably broad. Another area of significant concern was the proposed requirement to conduct a 100 percent baseline data point verification of SCADA systems. Pipeline operators generally commented that this proposed requirement would entail significant cost for very limited benefit. The
On December 11, 2008, the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC) met jointly for their bi-annual public meeting in Arlington, Virginia.
Based on the comments filed by the joint trade associations, those received during the public meetings described above, and the general trend of other comments, PHMSA presented the Advisory Committees with three variations of the regulatory language being considered by the Agency. These included the language proposed in the NPRM, the alternative language proposed by the joint trade associations, and a third option that reflected the trade associations' proposed language with modifications to reflect critical NPRM language and other comments that had been received. PHMSA provided these variations of the regulatory language to facilitate the Advisory Committee members' discussion of the rule and to provide a process by which the members could recommend a certain course of action by PHMSA with regard to the rule. Although PHMSA had not selected any particular course of action at that time, PHMSA expressed its view that the third option might be the most viable alternative.
The TPSSC discussed exempting gas distribution from all requirements of this rulemaking action. After substantial discussion, the TPSSC voted against recommending that PHMSA exclude distribution from the rule, but voted in favor of recommending that PHMSA limit the requirements placed on certain small distribution operators to fatigue management and associated recordkeeping issues.
The Advisory Committees provided additional substantive and editorial comments to the proposed definitions, the scope of part 192, general requirements, requirements concerning SCADA systems, verification, backup control, fatigue mitigation, alarm management, change management, operating experience, and training requirements. Also, members of the public were afforded an opportunity to comment during the meeting, and several participants from the public provided their viewpoints for the record. After further discussion among the members, the TPSSC voted twelve to one, and the THLPSSC voted unanimously in favor. Also, both Advisory Committees provided a recommendation for PHMSA to make the changes noted during discussion. A transcript of the Advisory Committees meeting is posted in the docket (PHMSA–2007–27954–0184.2).
The Advisory Committees recommended the following changes to the rule language proposed in the NPRM:
• Changing the definitions of controller and control room to limit the scope of the rule. The revised definitions would exclude field personnel who operate equipment and operator personnel who use SCADA information but who have no operational responsibility to respond to SCADA indications.
• Adding a scope statement to explicitly limit the application of the rule to controllers using SCADA systems.
• Excluding gas distribution pipelines serving less than 250,000 customers or gas transmission pipelines without compressor stations from many of the requirements.
• Reducing specificity in the elements operators would be required to define as controllers' roles and responsibilities.
• Limiting applicability of SCADA display guidance in API RP 1165 to SCADA systems that would be installed or undergo certain changes after the rule became effective.
• Requiring point-to-point verification of SCADA only when new field equipment is installed or when changes are made to field equipment or displays that could affect pipeline safety.
• Eliminating requirements to implement additional measures to monitor for fatigue when only a single controller is on duty.
• Reducing the scope and frequency of required alarm reviews.
• Eliminating the proposed requirement that operators review for lessons learned pipeline events that did not require reporting as incidents and focusing required reviews of incidents on those events where there is reason to believe that control room actions contributed to the event.
• Deferring to existing requirements for operator qualification rather than imposing an additional qualification requirement for controllers.
• Eliminating the proposed requirement that a senior officer of each pipeline company submit certification that the requirements of the rule have been implemented.
Our changes to the final rule in response to the comments and advisory committees' recommendations are discussed below in section V.
This final rule imposes requirements for control room management for all gas and hazardous liquid pipelines subject to parts 192 and 195 respectively that use SCADA systems and have at least one controller and control room. The scope of the rule is narrower in several respects than was proposed in the NPRM. First, for the reasons set forth below, LNG facilities are not covered by the rule, and no new requirements are adopted for part 193. In addition, changes to the proposed definition of a controller focus the new requirements on persons who work in control rooms and use SCADA systems to control their pipelines. The scope of the final rule has also been revised for gas pipeline operators such that each control room whose operations are limited to either or both of distribution with fewer than 250,000 customers or gas transmission without compressor stations must follow procedures with appropriate documentation that implement only the requirements for fatigue management, validation, and compliance and deviations. Pipelines meeting these criteria are generally smaller and simpler. They pose less complexity, obviating the need for the other requirements in this rule.
This rule requires pipeline operators to have and follow written control room management procedures. The operators must define the roles and responsibilities of controllers in normal, abnormal, and emergency operating
Pipeline operators will be required by this final rule to assure that new SCADA displays and displays for SCADA systems that are expanded or replaced meet the provisions of the consensus standard governing such displays, API RP 1165. Displays for gas pipelines are required to meet only some provisions of the standard. The proposed rule would not have limited applicability of this requirement to new or modified SCADA systems. Operators will be required to validate the accuracy of SCADA displays whenever field equipment is added or moved and when other changes that may affect pipeline safety are made to field equipment or SCADA displays. The proposed rule would have required that all operators perform a 100 percent verification of existing SCADA systems within a few years. This provision was not included in the final rule. Pipeline operators will also be required to test any backup SCADA systems and to test and verify a means to manually operate the pipeline (in the event of a SCADA failure) at least annually.
Pipeline operators must also establish a means of recording shift changes and other situations in which responsibility for pipeline operations is handed over from one controller to another. Such changes in responsibility may occur at scheduled shift changes or within a shift, when a controller is relieved for breaks and other reasons. Handovers can also occur between control rooms, for example where only one of multiple control rooms is used during night shifts. Pipeline operators will need to define procedures for shift changes and other circumstances in which responsibility for pipeline operation is transferred from one controller to another. The procedures must include the content of information to be exchanged during the turnover.
Pipeline operators must implement measures to prevent fatigue that could influence a controller's ability to perform as needed. Operators will need to schedule their shifts in a manner that allows each controller enough off-duty time to achieve eight hours of continuous sleep. Operators must train controllers and their supervisors to recognize the effects of fatigue and in fatigue mitigation strategies. Finally, each operator's procedures must establish a maximum limit on the number of hours that a controller can work. PHMSA recognizes there may be infrequent emergencies during which an operator may find the need to deviate from the maximum limit it has established to ensure adequate coverage in the control room for emergency response. Accordingly, the regulation provides that an operator's procedures may provide for the deviation from the maximum limit in the case of an emergency. Such a deviation would only be permitted if necessary for the safe operation of the pipeline facility. PHMSA or the head of the appropriate State agency, as the case may be, may review the reasonableness of any deviation from an operator's maximum limit on hours of service when considering whether to take enforcement action.
All pipeline operators are subject to the fatigue management requirement, even those whose operations do not involve multiple shifts. Controller fatigue can affect even single-shift pipeline operations and the PIPES Act requires that all pipeline operators have a plan that addresses fatigue. PHMSA expects that small operators, many of which operate only a single shift, will be able to meet these requirements with little effort. Shift schedule rotation is not an issue for these operators and written instructional material (e.g., pamphlets) that can be reviewed during scheduled training may be sufficient to address the education and training requirements for such small operators.
SCADA alarms are a key tool for managing pipeline operations, but excessive numbers of alarms can overwhelm controllers. This final rule will require pipeline operators to develop written alarm management plans. These plans must include monthly reviews of data points that have been taken off scan or have had forced or manual values for extended periods. Operators will also need to verify correct alarm set-points, eliminate erroneous alarms, and review their alarm management plans at least annually. Proposed requirements for weekly reviews of issues related to alarm management and specified elements to include in annual reviews were not incorporated in the final rule. Some elements that would have been included in those weekly reviews, particularly “nuisance alarms,” have been generalized to points that have had alarms inhibited (which would likely result if nuisance alarms occur) or which have generated false alarms, both of which are now required to be included in monthly reviews. Operators will also be required to monitor the content and volume of activity being directed to their controllers (including alarms and actions directed to controllers from sources other than the SCADA system) at least annually.
Pipeline operators will be required to consider the effects of future changes to the pipeline on control room operations. They must involve controllers, controller representatives, or their management in planning prior to implementing significant hydraulic or configuration changes that could affect control room operations. This participation must be accomplished with enough time prior to the implementation to allow adequate training, procedure development and review by the affected controllers. Operators must also assure good communications when field personnel are implementing physical changes to pipeline equipment or configuration. Proposed requirements to track SCADA maintenance, coordinate SCADA changes in advance, and consider effects on control rooms in merger and acquisition plans have not been incorporated.
Mergers and acquisitions are events that can introduce changes of importance to controllers. Acquired assets are often added to existing SCADA systems, or divested assets are removed. Other changes in operating practices may occur as a result of management changes associated with a merger. The proposed rule would have required that merger, acquisition, and divestiture plans be developed and used to establish and conduct controller training and qualification prior to the implementation of any changes to the controller's responsibilities. A unique section regarding merger, acquisition, and divestiture plans for the control room has not been included in the final rule, because these types of plans frequently include many elements that do not affect control rooms and controllers. Nevertheless, PHMSA considers that operators should take into account potential implications on control rooms during such events. Other requirements of this rule address many of the important factors affecting control room operations and controllers in a merger, acquisition, or divestiture. For example, operators will be required to consider additional alarms added to a controller station to determine whether they could create a “flood” that would potentially overwhelm the controller. PHMSA expects that operators would also consider alarm descriptors and prioritization if changes are made to a controller console. Changes to SCADA systems to incorporate new (or delete old) assets would trigger requirements
Pipeline operators will be required to review their operating experience to identify lessons that might improve control room management. Specifically, operators will be required to review any reportable event and determine if control room actions contributed to the event. This is more focused than the proposed requirement that operators review all reported incidents. Operators must identify, from these reviews, aspects of the event that may reflect on controller fatigue, field equipment, operation of any relief device, procedures, SCADA system configuration, and SCADA system performance. Operators must include lessons learned in controller training programs. The proposed rule requirement for operators to review “near misses” or events that did not meet criteria for reporting was not adopted in this rulemaking action, but such reviews are certainly encouraged.
Pipeline operators will be required to have formal training programs including computer-based or non-computer (e.g., tabletop) simulations to train controllers to recognize and deal with abnormal events. The training must also provide controllers with a working knowledge of the pipeline system, particularly as it may affect the progression of abnormal events, and their communication responsibilities under the operator's emergency response plans. Proposed requirements that training include site-specific failure modes of equipment and site visits to a representative sample of field installations similar to those for which a controller is responsible were not adopted.
Operators must, upon request of pipeline safety regulators, submit their completed control room management programs to the regulator for review. This replaces the proposed requirement that executives of pipeline operating companies submit to regulators annually a signed validation that: Controller training has been reviewed, only qualified controllers have been allowed to operate the pipeline, and the company continues to seek ways to improve control room operations. A request to review the plan will usually be in the course of a regulatory inspection where the adequacy of control room management plans and training will be reviewed, as will the operator's compliance with each of the above-referenced requirements.
The proposed requirements related to a qualification program for controllers were not adopted. Controllers are still subject to existing requirements for operator qualification, which address similar subjects.
The responses to comments in this section reflect PHMSA's consideration of the Advisory Committees' recommendations as well as the individual comments in the docket. A review of all submitted comments shows that the comments submitted by trade associations (API, AOPL, INGAA, AGA, and APGA), jointly and individually, address the comments of almost all pipeline operators. Some comments were on the preamble to the proposed rule. These comments will not be responded to unless they are relevant to this rulemaking action. Comments that were beyond the scope of this rulemaking action are not being addressed.
The joint trade associations; the Iowa Utilities Board; 11 LNG facility and gas pipeline operators; AGA; APGA; and one individual opposed addition of requirements into 49 CFR part 193 addressing LNG facilities.
AGA and the LNG facility operators stated that the LNG facilities should not be included in the final rule because: (1) It was not the intent of Congress or the NTSB to include LNG in this regulation; (2) Congress expressly limited the CCERT study in the Pipeline Safety Act of 2002 to three pipeline facilities; (3) LNG facilities were not to be included in the pilot study; (4) LNG facilities are operated as plant sites with local control rooms; (5) Almost all of the text in the proposed amendments to 49 CFR part 193 is copied verbatim from the language for gas and hazardous liquid pipelines, but many of the requirements that are logical for pipelines make no sense in operating LNG plants; (6) The agency's own Regulatory Impact Analysis (RIA) study of the proposed rule clearly demonstrates no benefit that would offset the cost of including LNG facilities in the NPRM; (7) LNG facilities are regulated by 49 CFR part 193 and NFPA 59A, as incorporated by reference; and (8) The very detailed proposed control room rule creates confusion when added to the existing regulations. AGA and the joint trade associations suggested that PHMSA should initiate a separate rulemaking action focused on issues relevant to LNG facilities if it concludes that control room management requirements are needed for these facilities.
Agency response—PHMSA agrees that the PIPES Act requirement regarding control room management does not explicitly refer to LNG facilities, nor are such facilities referenced in the PSIA legislation with regard to the controller certification pilot study. Similarly, NTSB did not address LNG facilities in its SCADA safety study and related recommendations. At the same time, neither Congress nor NTSB explicitly stated that control room management requirements should not be included for LNG facilities. Given the broad authority of PHMSA to regulate pipeline safety, including the safety of LNG facilities, the silence of the PIPES Act and the NTSB safety study with respect to LNG is not, by itself, a compelling reason why these facilities should be excluded from this rulemaking. However, through further review and consideration of the comments, PHMSA has determined that LNG should not be included in this rulemaking action at this time.
After considering the comments and re-evaluating the basis for applying the same requirements to part 193 for LNG facilities, PHMSA is persuaded that there are several reasons why we should not have used the same requirements. LNG facilities are different from pipelines. As pointed out by commenters, LNG facilities exist on a single site, rather than dispersed over hundreds or thousands of miles, and LNG controllers thus have different knowledge of and working responsibilities for facility equipment. LNG controllers can, and do, walk to “field” equipment within minutes to monitor its condition or take local operating actions, whereas pipeline controllers may “interact” with field equipment only via their SCADA systems. Because they operate equipment locally, LNG controllers have better operational knowledge of the equipment in their facilities, including its possible failure modes, than do most pipeline controllers. All of these differences diminish the value in improved safety that would result from implementing the proposed requirements at LNG facilities.
In addition, the regulations in part 193 do not parallel precisely those in the other parts. For example, part 193 includes specific requirements applicable to control centers
AGA stated that the proposed definitions of controller and control room had the effect of unreasonably expanding the scope of all rule sections. AGA stated that the proposed rule would regulate local, remote or field control rooms, panels and devices, but noted that local, remote or field control rooms are usually hardwired instead of operated via long-distance communications through SCADA. Because a controller or a technician can address problems and concerns with a few minutes' walk in these facilities, AGA contended local control rooms do not need the complicated procedures placed in this proposed rule.
Other commenters agreed that the proposed definitions of “controller” and “control room” were unreasonably broad and that they led to a scope that was broader than necessary. The Iowa Utilities Board (Iowa) stated that by defining a controller as someone who monitors “or” controls, instead of monitors “and” controls, the scope of the rule would unreasonably expand to include any facility with a pressure gauge, and any person who checks the pressure gauge. The joint trade associations' alternative regulatory language included revisions to definitions. Their alternate definitions for “controller” and “control room” are based on API RP 1168. API and AOPL also stated that the NPRM definitions for “controller” and “control room” are too broad. They recommended the agency adopt the API RP 1168 definitions for “controller” and “control room” as proposed in the joint trade associations' alternate language. Iowa agreed that the definition of controller and control room should be based on the definitions in API RP 1168. Iowa also suggested that the agency adopt the alternative regulatory language proposed by the trade associations. NAPSR proposed adopting the API RP 1168 control room and controller definitions to resolve the issue of jurisdictional authority for pipelines crossing state lines. The Missouri Public Service Commission (PSC) stated that it supports and concurs with the comments submitted by NAPSR. PSC also believes that the definitions of “control room” and “controller” noted in the NAPSR comments should be adopted in the rulemaking. All individual gas and hazardous liquids pipeline operators expressed similar concerns with the proposed rule definitions of “controller” and “control room.”
INGAA stated that the proposed regulations far exceed what Congress intended regarding the range of subjects covered, the range of facilities covered and the range of employees covered.
The joint trade associations stated that the proposed rule had no scope statement to provide guidance regarding the application of the proposed rule. API and AOPL stated that the scope of the NPRM exceeds the intent of Congress. Individual pipeline operators echoed the comments of the joint trade associations and the individual trade associations. Many of the comment submitters are, like AGA, concerned with broad definitions of “controller” and “control room.” Also, some individuals commented that the scope of the proposed rule is too broad.
APGA stated that the proposed rule should be re-written to be limited to true pipeline controllers and made reasonable for those operators. APGA noted that many small gas distribution pipeline operators, including many of its members, do not have control rooms and controllers in the same sense as do larger pipeline operators.
Agency response—PHMSA agrees that the proposed definitions of “controller” and “control room” had a rather pervasive effect on the scope of the requirements in the rule. In particular, PHMSA agrees with the Iowa Utilities Board that the proposed language could have been read to include personnel who monitor a pressure gauge (or other instrument) but have no authority or responsibility for pipeline operation. This result was unintended. PHMSA did not intend these requirements to apply to persons who may use SCADA information for non-operational reasons, but rather to persons with operational duties and responsibilities that involve use of SCADA and who thus can directly effect on pipeline safety. PHMSA has made changes in the definitions in the final rule to clarify this intent.
The inclusion of field control rooms and local control panels, however, was intended. The proposed rule was intended to apply to these control operations, in situations in which the person performing local control actions could not actually see the effect of those actions, based on the premise that the cognitive issues related to use of local computer-based controls were similar to those associated with use of SCADA in remote control rooms. PHMSA is persuaded by its review of the public comments that while cognitive issues may be similar, the potential effect on safety that could result from use of local computer-based controls are much less. As a result, PHMSA has modified the final rule to remove explicit requirements that local control panels be included in the actions required by this rule. Local control panels and field control rooms will only be included if they meet the definitions included in this rule, i.e., if they can have an effect on pipeline safety similar to that of a non-local control room.
By revising the definition of control room in response to the comments, the agency has also limited the scope to control rooms with SCADA systems. In addition, the wording in the proposed definition is changed from “monitoring or controlling” to “monitoring and controlling.” It should be noted that a control room whose SCADA system is used only to monitor incoming data is still included in the requirements of the rule if the controllers otherwise act to “control” the pipeline. Some control rooms have only monitoring capability in their SCADA system, but they achieve control through controllers responding to incoming data by other means such as by contacting field personnel and directing them to take action when necessary. If controllers prompt others to action (or perform those control action themselves) they are considered to “control” the pipeline. Therefore, the change from “or” to “and” does not exclude monitor-only control rooms from the scope of this rulemaking action. The change from “or” to “and” principally excludes individuals who may access and monitor SCADA system data for non-controller, incidental reasons, such as maintenance planning, equipment efficiency, or business logistics purposes. These persons cannot directly affect pipeline safety, because they are unable to use the SCADA system to take any controller actions.
With respect to the definition of controller, the agency similarly narrowed the scope to eliminate persons who only use SCADA data incidentally and thus cannot directly affect pipeline safety. The definition now includes only those persons who monitor SCADA data from a control room and have “operational authority and accountability for the remote operational functions of the pipeline facility as defined by the pipeline operator.” As in the case of “control room,” the definition of “controller” has been modified from “monitor or control” to “monitor and control.” If a
PHMSA considers that these changes to the definitions of “control room” and “controller” limit the scope of the proposed rule to those persons and operating centers that can directly affect pipeline safety. Most importantly, they eliminate the unintended apparent inclusion of certain employees who use SCADA data only incidentally. PHMSA considers that the revised definitions still encompass the majority of employees and control centers that were intended as the focus of this rulemaking. The changes in definitions address most, but not all comments concerning scope.
PHMSA has revised the final rule to include a statement of scope to clarify that it applies to each operator of a pipeline facility with a controller working in a control room who monitors and controls all or part of a pipeline facility through a SCADA system. PHMSA has also revised the rule to exclude operators of some smaller gas pipeline systems from many of the rule's provisions. Specifically, gas distribution operators with less than 250,000 services and gas transmission operators without compressor stations are required only to comply with the provisions related to fatigue mitigation, validation, and compliance and deviation. These small and simple pipelines require far less controller action, obviating the need for the other provisions. There are often few or no actions that controllers of small distribution systems can take remotely. These systems operate at low pressures, providing significant time to identify and respond to unusual situations before any safety problem could result. Similarly, there are few actions that a controller of a transmission pipeline that does not include compressor stations can take to adversely affect safety. Most such pipelines are short. They often are the gas supply for local distribution companies, and are operated as an integral part of their distribution pipelines. They meet the definition of transmission pipelines because they operate above 20 percent SMYS or serve one of the functions included in the definition in section 192.3, but they represent a much smaller potential for safety issues. It should be noted, however, that this limited exclusion applies only if the operations from a gas operator's control room are limited to such smaller operations. The full requirements of the rule apply to operators of such pipelines if the operator also operates other pipelines outside of this limited exclusion from the same control room. For example, there may be large gas transmission operators who also operate small distribution pipelines or large LDCs that also have or operate transmission without compressors. In such cases, all the provisions of this rule apply to all of the operator's pipeline operations from a common control room.
The joint trade associations proposed changes to the definition of SCADA systems. The proposed rule would have defined these as “a computer-based system that gathers field data, provides a structured view of pipeline system or facility operations, and may provide a means to control pipeline operations.” This definition would have encompassed computer-based control systems in the field. The trade associations proposed that this definition be limited to systems used by controllers in the control room. This change is related to the concern over scope and the definition of “controller” and “control room” described above. The joint trade associations would also focus the definition of “alarm” on safety-related parameters, omitting reference to indications that operational parameters not related to safety are outside expected conditions.
INGAA stated that the definition of “alarm” is not required or even contemplated by Congress for gas transmission pipelines and, therefore, should be deleted. On the definition of SCADA system, INGAA recommended that the agency adopt the definition provided by the joint trade associations.
Agency response—Alarm management is a significant factor in control room management and is thus included in this rule. Excessive numbers of alarms or alarms that are inaccurate or not prioritized can overwhelm a controller, resulting in a failure to take appropriate action. Assuring appropriate management of control room alarms requires that the alarms of concern be defined. At the same time, PHMSA understands the industry's concern that SCADA systems are used to alarm many parameters that do not affect safety and that response to these parameters is outside what should be PHMSA's concern. Accordingly, PHMSA has revised the definition in the final rule to reflect that alarms of concern are those providing either or both audible and visible indications to controllers that equipment or processes are outside operator-defined, safety-related parameters. However, the final rule will require that operators monitor the content and volume of activity being directed to each controller.
The final rule defines SCADA systems as a computer-based system or systems used by a controller in a control room that collects and displays information about a pipeline facility and may have the ability to send commands back to the pipeline. This excludes local computer-based control stations for the reasons described above. Also as discussed above, control may be exercised by a controller notifying other personnel to take action. Control may also be accomplished through SCADA commands. The key factor is that the system provides information that allows control to occur, and systems that cannot send commands to operate pipeline equipment may thus still be SCADA systems under this definition.
The joint trade associations stated that the preamble statement vastly underestimates the cost of the proposed regulations. They stated that the proposed rule would cost more than $100 million annually and that the preliminary regulatory analyses should have concluded that this was an economically significant rule under section 3(f)(1) of Executive Order 12866 (58 FR 51735; October 4, 1993) and DOT's regulatory policies and procedures (44 FR 11034; February 26, 1979). Also, they stated that the proposed rule has a significant regulatory impact within the meaning of 5 U.S.C. 601
AGA stated that its review of the proposed rule shows obvious errors in the analysis. AGA stated that it obtained rough estimates from some of its LDC members that show the proposed rule to be not cost beneficial on a national basis, and that it will exceed the $100 million in annual costs threshold of a significant rule. AGA stated that a comparison of implementation costs between the proposed rule and that of the alternative regulatory language proposed by the joint trade associations shows the costs of the alternative regulatory language are approximately
INGAA stated that the benefits of the proposed rule for the gas transmission companies are unworthy of a rulemaking compared to the expected annual costs for the next 10 years of nearly $140,000,000.
API and AOPL stated that they asked their members to comment on the number of employees that would be covered under the definition of “controller” provided in the proposed rule; the aggregated cost estimate for training and qualifying these additional employees; and the estimated cost of point-to-point verification today and the projected estimate under the proposed rule. They stated that the cost estimates vary from operator to operator, but what each operator had in common was a tremendous increase in the number of additional employees that would need to be trained and qualified at an exorbitant cost. They stated that estimates on the increased number of employees under the proposed rule range from four times as many employees to train and qualify to more than ten times the current number of “traditional controllers.” The initial training and qualification costs ranged from $1.2 million to more than $5 million per operator with operators calculating these costs in a number of ways. The annual re-qualification costs would average $500,000 per operator. The point-to-point verification cost estimates averaged $500,000 per operator. They stated that one of their members included lost revenue from having to shut down the pump station, breakout storage tank areas, terminal deliveries and other hard assets in order to complete the point-to-point test. Also, they stated that the RIA did not have estimates for Alarm management and Qualification. They stated that a company estimated that it would cost $52,000 per year to review SCADA operations at least once a week as proposed, and evaluating a controller's physical abilities and implementing methods to address gradual degradation would cost $60,000 initially for 400 controllers and $8,000 annually thereafter.
Agency response—PHMSA has revised the regulatory analysis based on the revised scope of the rule, relevant comments received, and industry-submitted cost estimates. The scope of the rule is narrowed to exclude some gas LDCs and some gas transmission operators from most requirements in this rulemaking action. In addition, many of the individual requirements have been narrowed.
PHMSA concludes that the widely varying estimates of cost between our RIA and industry estimates resulted largely from confusion concerning the definition of a controller. As discussed above, the definition in the proposed rule had the unintended effect of appearing to encompass pipeline operator employees who use SCADA data but have no operational responsibilities for the pipeline. This significantly increased the number of employees that would have been subject to the requirements affecting controllers (e.g., fatigue mitigation, training and qualification). PHMSA agrees that applying these requirements to a much larger number of personnel would incur costs significantly higher than estimated in the RIA. The revised definition in the final rule focuses the requirements on controllers working in control rooms with operational responsibility—and the revised RIA uses a more-realistic estimate of the numbers of these personnel that will be affected.
Changes made in the final rule also significantly reduced the cost of elements not depending on the number of controllers affected. A major cost element was the proposed requirement for a one-time, 100 percent verification of SCADA systems. Commenters pointed out that this requirement would have involved significant costs for very little benefit. It is unlikely that such a “baseline” verification would have identified significant problems that could affect safety. This is because SCADA systems are already installed and in use by operators, so readings have already been verified and problems of any significance would likely have surfaced in the normal course of using a SCADA system over time. Thus, PHMSA agrees that the significant effort that would be required for a 100 percent baseline verification is unlikely to result in commensurate safety benefit, and so the final rule eliminates that requirement. It requires, instead, that SCADA displays be verified when field equipment monitored by SCADA is moved or when other changes that affect pipeline safety are made to field equipment or displays. These kinds of changes can introduce errors that would affect subsequent SCADA operations. For this reason, SCADA information is typically verified when making these types of changes, to assure that the changes have been implemented properly and that all equipment is functioning as intended once work is completed. As a result, this re-focused SCADA verification requirement imposes much lower additional costs. It essentially has the effect of requiring that all pipeline operators take the same actions that a conscientious operator would take even if no requirement existed.
The scope of required alarm verifications is also significantly reduced in this final rule. Commenters suggested that they would need to hire additional staff solely to perform the weekly and monthly reviews that would have been required by the proposed rule. PHMSA is persuaded that the alarm conditions are unlikely to change so much on a weekly basis, absent some significant “event,” that a thorough review would be needed on such a frequency. Response to an event would typically include the effect that the event may have had on alarms. The final rule has reduced these requirements to a monthly review of more-limited scope and an annual review of the alarm management plan, significantly reducing expected costs.
The revised RIA considers the changes in scope of the final rule and concludes that the rule is cost-beneficial.
AGA stated that Congress intended for pipeline operators, not the agency, to write their control room management plans due to the diversity of control rooms. AGA stated that PHMSA should not dictate to an operator what responsibilities and tasks should be written into an operator's plan, which AGA considered was the effect of the specific elements included in the proposed rule.
API and AOPL supported the language in Paragraphs (b)(1)–(3) of the proposed rule (decision making during normal operations, role during abnormal events, and emergency role) and recommended deletion of paragraphs (b)(4) and (b)(5) (responsibility to coordinate with other operators having pipelines in common corridors and shift change). API and AOPL stated that operators currently maintain Emergency Response plans that address multi-pipeline corridors and appropriate notification and response procedures. They stated that these roles and responsibilities for controllers and other
INGAA stated that this section should be deleted in its entirety because it runs counter to congressional direction and PHMSA's authority under Section 12 of the PIPES Act.
Agency response—PHMSA agrees that it is appropriate for operators to define roles and responsibilities for controllers, because of the many varied circumstances of different pipelines, their control rooms, and their operating practices. The proposed rule would have required that operators define these roles and responsibilities, and this has been retained in the final rule. The proposed rule went on to list certain roles and responsibilities that operators were to include in their definition. These have been deleted. PHMSA will verify during inspections that operators have appropriately defined the roles and responsibilities for their controllers.
PHMSA acknowledges API/AOPL's support of the proposed elements addressing normal operations, abnormal operations, and emergencies. These elements have been retained in the final 192.631(b) and 195.446(b) (
PHMSA disagrees that it is not necessary to address shift change. Experience has shown the importance of controlling the transfer of information between controllers. Incidents, accidents, and other problems have occurred because of inadequate shift change. PHMSA has deleted the specific alternative mechanisms for recording a shift change that were included in the proposed rule (a system log-in feature or recording in shift records), but the final rule still requires that operators establish a method of recording controller shift changes. Operators are also required to define the information that controllers must discuss or exchange during shift changes and other instances in which another controller assumes responsibility.
AGA disagrees with periodic point-to-point verification requirements except to show that the SCADA system displays accurately depict field configuration when any modification affecting safety is made to field equipment or applicable software, and when new field equipment is installed.
INGAA stated that “Adequate” would seem to include those points that affect pipeline safety, and not each of the points that collect information about the pipeline which are completely unrelated to safety. INGAA estimates the safety-related points to be significantly outnumbered by the non-safety-related points.
API and AOPL stated that their members' experience shows that re-verification offers few safety benefits in return for the large investment in SCADA system and field resources that would be required. They suggested the emphasis of the regulation should be on management of change, rather than re-verification.
The proposed requirement to implement API RP 1165 for SCADA displays also caused concern. Pipeline operators objected to the requirement to apply the standard to existing displays, noting that controllers have been trained and have experience in using existing systems and that any benefit from implementing the standard would likely be small. Other operators objected to the incorporation of the standard or suggested that alternatives be allowed. AGA and several operators suggested that operators be required to implement the “general” requirements of the standard.
INGAA commented that the “critical” information required to be exchanged during shift changes required more definition. Some pipeline operators objected to the proposed requirement to provide an overlap between shifts to allow for shift change. API and AOPL suggested that PHMSA consider adopting API RP 1168 to govern shift change requirements.
Agency response—PHMSA has eliminated from the final rule the proposed requirement to perform 100 percent baseline verification of SCADA systems. PHMSA has also eliminated the proposed requirement that operators plan for systematic re-verification. As discussed above (see paragraph D of this section), PHMSA concluded that a baseline verification was unlikely to identify safety-related problems that had not already been recognized through normal operations. Similarly, new problems are likely to be identified as part of normal work before a re-verification would find them. As a result, the significant effort that would be required to implement these two requirements would result in little foreseen safety benefit. The final rule requires that operators verify SCADA when changes are made that can affect the information displayed by SCADA. SCADA problems are most likely to be introduced when making changes and verification that the SCADA system functions as intended are a means of identifying such problems.
With respect to API RP 1165, PHMSA agrees that applying the standard to existing displays is likely to lead to little safety benefit for the cost incurred, since controllers have already been trained and are experienced in using existing displays in their current operations. In addition, changes made to existing displays would require retraining of controllers and could introduce confusion unnecessarily. When displays are changed, however, retraining will be needed because of the change and the reasons for not disrupting controllers' use of displays with which they are familiar no longer apply. PHMSA has limited the requirement to apply the standard to displays that are added, expanded or replaced after the date by which the control room management procedures required by this rule must be implemented. For gas pipelines, the final rule requires that only certain sections of the standard be implemented. The cited sections address the aspects that are most important to assuring that displays are configured to be most useful to controllers for managing safe pipeline operations, including human factors engineering. PHMSA is not aware of equivalent standards that would accomplish the same purpose, and has not provided for an alternative. Flexibility is available in that operators need not implement a provision of API RP 1165 if they demonstrate that the provision is not practical for the SCADA system used.
PHMSA has eliminated the requirement to provide for overlap of shifts to facilitate shift turnover. Overlaps will likely be needed to accommodate the need to transfer information to an oncoming controller. The transfer of information is required, obviating the need to specify an overlap requirement in the regulation. The final rule for gas pipeline operators requires that operators establish procedures for when a different controller assumes responsibility, including the content of information that must be exchanged, but
The National Transportation Safety Board (NTSB) stated that it does not believe the proposed rule satisfactorily addresses mitigation of controller fatigue. NTSB stated that the proposed rule should require operators of pipeline facilities to incorporate fatigue research, circadian rhythms, and sleep and rest requirements when establishing a maximum limit on controller shift length, maximum limit on controller hours of service, and schedule rotations. Also, NTSB stated that it would like PHMSA to provide additional information about the agency's criteria for evaluating operators' plans and to explain how the agency intends to monitor the effectiveness of implementing those plans on fatigue mitigation.
Some individuals suggested that the proposed rule does not go far enough. Some suggested a need for a uniform maximum hours of work limit to be established in the regulations. These individuals stated that the rule needs to set standards to decrease the likelihood of controller fatigue rather than passing that duty on to operators. They stated that the proposed rule does not set standards regarding fixed versus rotating shifts and does not set standards for the length of each rotation. One individual suggested setting shifts at ten hours with two hours overlap between beginning and end of shifts and with a three consecutive day break. Some suggested using part-time workers to overlap 12 hour shifts. One stated that the agency should redraft the vague provisions found in the shift change and fatigue sections and should provide more specific examples for the pipeline operators to adequately comply with the rule. One individual stated that for the proposed rule to increase vigilance and mitigate fatigue, the agency must address boredom and monotony. One suggested that the agency should consider methods that specifically address mental fatigue and an adrenaline response training program for all pipeline workers.
Other citizens supported the proposed rule on fatigue mitigation. One stated that fatigue management should be implemented on an intra-company basis based on the individual needs of the controllers rather than on an industry-wide scale. Others commended the agency for not prescribing a maximum hours of work limit. Some supported the need for testing of physical and visual abilities for controllers. One individual suggested a requirement for controllers to check if they are physically fit to perform the tasks assigned. One individual suggested implementing a requirement that workers make observational entries every quarter hour to ensure that they remain engaged in their duties and maintain continual mental vigilance throughout a shift.
AGA objected to requiring that operators implement additional measures to monitor for fatigue when a single controller is on duty. AGA stated that the gas distribution industry's safety record has demonstrated that a single controller can safely operate a pipeline.
API and AOPL suggested that PHMSA modify paragraph (d) of the proposed rule to reflect that despite reasonable fatigue mitigation measures the operator may not be able to “prevent” fatigue from occurring. Also, they encouraged PHMSA to consider adopting the language in Section 6 of API RP 1168 on Fatigue Management.
INGAA stated that the joint trade associations' substitute rule addresses fatigue. INGAA stated that it urges adoption of these provisions along with the rest of the substitute rule.
Agency response—Fatigue can be an important factor affecting controller performance. NTSB has recommended that PHMSA establish requirements in this area, and the PIPES Act requires that operator human factors plans include a maximum hours of service limit. Fatigue is something that affects all people at some time and many individual comment submitters have suggested ways in dealing with this issue. Nonetheless, PHMSA agrees that it is difficult to establish and enforce regulations that “prevent” fatigue. In this final rule, PHMSA requires that operators implement methods to reduce the risks associated with fatigue.
Pipeline operators will be required to comply with a maximum hours of service limit. This rule does not establish such a limit, but rather requires that each operator establish a reasonable limit for itself. This will allow consideration of factors that may be unique to the operation of particular pipelines. Experience has also shown that deviations from normal scheduling (e.g., requiring a controller to work a double shift due to unexpected absence) can result in excessive fatigue; establishing a limit will have the effect of reducing the occurrence of these deviations.
At the same time, PHMSA recognizes there may be infrequent emergencies during which an operator may find the need to deviate from the maximum limit it has established to ensure adequate coverage in the control room for emergency response. Accordingly, the regulation provides that an operator's procedures may provide for the deviation from the maximum limit in the case of an emergency. Such a deviation would only be permitted if necessary for the safe operation of the pipeline facility. PHMSA or the head of the appropriate State agency, as the case may be, may review the reasonableness of any deviation from an operator's maximum limit on hours of service when considering whether to take enforcement action.
PHMSA has not included an explicit requirement that operators incorporate fatigue research and circadian rhythms when establishing their limits. Operators will be expected to have a scientific basis for the limit they select. PHMSA expects that operators will consider circadian effects, need for rest, and other factors highlighted by relevant research, but PHMSA sees no benefit in including general references to these factors in this rule. PHMSA has included in this final rule a requirement that shift lengths and schedule rotations provide controllers sufficient off-duty time to achieve eight hours of continuous sleep. This addresses NTSB's concerns that sleep and rest needs to be accommodated. PHMSA has already issued an advisory bulletin providing guidance to pipeline operators on ways to manage fatigue,
PHMSA has not yet developed criteria for reviewing operator-developed hours of service limits and human factors management procedures, but plans to develop inspection criteria.
PHMSA has not included in this final rule a requirement to provide additional measures to address fatigue in situations where a single controller is on duty. Operators will need to address single-controller situations in their fatigue management plans, but no particular additional measures are required to monitor fatigue of a single controller at this time.
AGA stated that the proposed rule for alarm management is overly prescriptive. AGA requested that language be written at a high level to account for the diversity of control room systems used by different operators.
API and AOPL stated that they believe the alarm management requirement of the proposed rule is too prescriptive and will not result in an application of “best practices” as currently written. API and AOPL suggested that PHMSA require each operator to maintain an alarm management plan based on currently accepted industry practices. They stated that the plan should be based on a company's risk assessment related to alarm management and include regular audits and reviews of the alarm system performance to identify areas for training and improvement. They also stated that a company should assess risks associated with alarming and modify its program as needed on a less frequent basis.
INGAA stated that this section should be deleted in its entirety because it runs counter to congressional direction as expressed in Section 12 of the PIPES Act and because it will not increase pipeline safety. INGAA urged the agency to adopt the joint trade associations' substitute rule for alarm management. INGAA also contended that the requirement would be very costly to implement.
Agency response—The alarm management provisions included in the NPRM were prescriptive and required frequent reviews. In addition, some of the required review elements would have been difficult to identify. For example, weekly reviews would have been required to include events that should have resulted in alarms but did not. Such events could be identified using SCADA data (even though they did not produce alarms) but would have required detailed review to do so. PHMSA is persuaded by the comments that the proposed provisions would have been burdensome and might not necessarily have addressed factors important for alarm management in particular pipeline control rooms. Instead, PHMSA has adopted the suggestions to require that each operator have an alarm management plan. Operators will develop those plans in recognition of issues that have proven important to their operations.
The final rule continues to require that alarm management plans include some critical elements. Foremost among these is a monthly review of points impacting safety that are not providing current data to controllers or points that may be triggering erroneous alarms. Operators respond to problems that occur in SCADA systems (and which can result in inaccurate information being displayed) by taking the points “off scan,” which means operators manually “force” certain information to be displayed. Controllers are generally made aware that the affected data is not timely and accurate, but the forced values (or no values at all) help prevent confusion. Operators return the data points to normal operation once the problems with the SCADA system have been identified and corrected. Generally, SCADA systems involve many data points (often thousands) and controllers are able to manage pipeline operations and respond to abnormal events even though some data is not current. Still, PHMSA considers it important that SCADA problems be addressed promptly, so that controllers have the most accurate and timely information with which to diagnose and respond to pipeline events. The monthly review is intended to assure that the need to address SCADA problems promptly is not lost in the crush of other activities.
The final rule will also require that operators monitor the content and volume of activity being directed to each controller. This requirement is intended to identify so-called alarm “floods,” which can involve many alarms (often not relating to pipeline safety) occurring simultaneously or in a short period. Such floods can overwhelm the capability of a controller to recognize problems and events that may underlie the alarms, and thus delay prompt response. PHMSA accepts the point made by commenters that the agency should not be regulating use of SCADA alarms for purposes not related directly to pipeline safety, but still considers that it is important to assure that controllers' ability to respond appropriately to safety-related alarms is not compromised. The requirement to monitor for volume and content of activity is intended to do this. Operators who identify situations in which controllers are receiving more information or required to perform more activities than they can process and address will be expected to take appropriate corrective action in a timely fashion.
It is also critical that operators verify correct alarm set points and descriptions, review their alarm management plans regularly, but at least annually, and address deficiencies identified in their reviews. Accordingly, these elements are also included in the final rule.
AGA requested that the proposed requirements related to review of operating experience be deleted in their entirety, because AGA contended that they are duplicative of other sections in 49 CFR parts 191 and 192. AGA, INGAA, and others also objected to the proposed requirement that operators establish a threshold for near-miss events (i.e., events of some significance but which do not meet criteria for reporting to regulators as an incident) and include them in periodic reviews. The comments noted that this concept is impractical and would be difficult to enforce, that it effectively elevates these “near-miss” events to equality with incidents requiring reporting, and that it would add significant additional burden for very little benefit.
INGAA stated that this section should be deleted in its entirety because it runs counter to congressional direction as expressed in Section 12 of the PIPES Act and because it will not increase pipeline safety.
API and AOPL suggested deleting requirements associated with the need to review accuracy, timeliness and portrayal of field information on SCADA displays and review of events that do not meet the threshold for reporting as accidents.
One individual commented that having controllers review non-reportable events, along with other activities that this rule is imposing on controllers, would require an excessive amount of valuable time.
Agency response—PHMSA does not agree that the proposed review requirements duplicate existing requirements. The requirements in this rule will build on existing requirements to identify and report incidents that meet certain criteria. PHMSA recognizes that those regulations require that operators review events to identify information that must be reported. The requirements in this rule are focused on identifying the effect of operational events on controllers, controller workload, and the ability of controllers to manage pipeline operations safely. PHMSA expects that these additional considerations will be included in the reviews of incidents currently conducted. Adding these considerations to existing reviews should result in minimal additional burden, but will help improve safe pipeline operations. The final rule will require that operators consider, in their reviews of reportable events, deficiencies relating to controller fatigue, field equipment, the operation of any relief device, SCADA system configuration, and SCADA
PHMSA is persuaded that the requirement to conduct similar reviews for events that do not meet reporting criteria (i.e., near-miss events) is not necessary at this time. These events are not subject to reviews related to the need to submit information concerning the event, because operators are not required to report them. Accordingly, the entire review effort would be additional, rather than control-room considerations being a minimal addition of effort to an already-required review. Furthermore, these events have less safety significance than those that must be reported. The proposed provision to review near-miss events for control room lessons has thus not been included in the final rule, but PHMSA encourages operators to use near-miss information to advance pipeline safety.
AGA requested that change management be removed from the proposed rule. AGA stated that the concept is best left to individuals familiar with an operator's entire operations and maintenance manual. AGA further stated that the person managing operations and maintenance should address the changes that can impact the job of a controller or any pipeline function. AGA stated that since most changes to a pipeline system have nothing to do with controllers, the change management concept should not be introduced into pipeline safety through a control room management rule.
API and AOPL recommended that PHMSA consider replacing the proposed language concerning change management with the language contained in Section 7 of API RP 1168. They stated that the proposed language is too prescriptive, would cause delays in implementation, and result in additional costs with no real benefit to justify these additional procedures.
INGAA stated that this section should be deleted in its entirety because it runs counter to congressional direction as expressed in Section 12 of the PIPES Act, and because it will not increase pipeline safety.
Agency response—Not all pipeline changes affect controllers or control room operations. Some do, however, and it is important that controllers recognize that such changes are occurring, have sufficient training before they occur, and understand how they will affect the response of the pipeline to operational events. PHMSA has thus retained requirements for change management in the final rule.
At the same time, PHMSA agrees that the proposed requirements were too prescriptive and that pipeline operators should have flexibility in integrating change management into their organizational structure and business operations. The final rule requires that gas pipeline operators establish communications between control room representatives, management, and field personnel when planning and implementing physical changes to pipeline equipment or configurations. Operators must seek control room or control room management participation prior to implementing significant pipeline hydraulic or configuration changes. Field personnel will also be required to notify the controller when emergency conditions exist or when making field changes that affect control room operations. These requirements will assure that changes that could affect the ability of controllers to monitor the pipeline and assure safe operation are identified early so that training programs and procedures can be modified, if needed, and controllers can be made aware of changes that could affect their activities.
Operators of hazardous liquid pipelines will be required to implement change management provisions in Section 7 of API RP 1168. These are similar to the requirements for gas pipeline operators discussed above. PHMSA recognizes that Section 7 of API RP 1168, and other recommended practices incorporated by reference, commonly use the word “should” to denote a recommendation or that which is advised but not required. For example, paragraph 7.1 of API RP 1168 states that “[p]ipeline control room personnel should be included in the project or change design and planning process.” Where a standard incorporated by reference utilizes words of recommendation, such as “should,” an operator is expected to follow such provisions unless the operator has documented the technical basis for not implementing the recommendation. This has been PHMSA's position with regard to compliance with standards incorporated by reference that utilize words of recommendation.
A citizen suggested the use of videos instead of site visits for controllers. One individual suggested the use of a standardized examination for certification of controllers based on each pipeline's configuration, and a requirement for operators to consider the educational background of the individuals applying for a controller position. Another individual suggested controller feedback on training.
AGA requested that the Training section be deleted because 49 CFR part 192, subpart N provides operator qualification rules for all pipeline employees performing covered tasks.
INGAA stated that this section should be deleted in its entirety because it exceeds congressional direction and PHMSA's authority under Section 12 of the PIPES Act and because it will not increase pipeline safety.
API and AOPL stated that under the proposed rule's overly broad definitions of “controller” and “control room,” operators would have to expend considerable resources to meet the proposed requirements. They suggested deleting some sections from the proposed rule.
One individual agreed with an industry practice of a three year re-qualification period rather than annual re-qualification as proposed by PHMSA.
Agency response—Training is an important element of this rule. In many ways, training needs for controllers are different from those for other pipeline employees. Existing operator qualification requirements (subpart N of part 192 and subpart G of part 195) address training and qualification for specific tasks meeting certain criteria (called “covered tasks”). Controllers require training that goes beyond specific tasks. They must be able to recognize abnormal and emergency events from the indications and alarms that these events will produce through SCADA. NTSB has recognized that controllers need this training and has recommended that PHMSA establish requirements for controller training that include simulator or non-computerized (e.g., tabletop exercises) training to recognize abnormal operating conditions, in particular leak events. The PIPES Act mandates that PHMSA implement standards in response to this NTSB recommendation. Accordingly, PHMSA has included such training requirements in this final rule.
PHMSA has revised the final rule to eliminate some of the specific elements that the proposed rule would have required to be included in this training. In particular, PHMSA has eliminated
AGA requested that the senior executive validation requirements be removed from the rule. AGA commented that since the executive cannot approve the plan on the agency's behalf, it is not logical for the executive to independently approve the plan just to have the agency subsequently approve or reject the plan.
API and AOPL stated that they would like to work with PHMSA to more clearly define operator accountability. They stated that the paragraph, as currently worded with “senior executive officer,” is inappropriate. They stated that the definition of “senior executive officer” differs among operators, and API and AOPL would like to better understand what the term means to PHMSA. They stated that many of their members also commented that verifying that ergonomic and fatigue factors continue to be addressed or that controllers are involved in finding ways to improve safety is more appropriate for a lower level of management than what would constitute a “senior executive officer.” Even if it were appropriate for executive signoff, they said they believe the current language of the proposed amendments is too narrow and specific.
INGAA stated that requirements for executive validation should be deleted in their entirety. INGAA said this section is inconsistent with congressional direction and will not increase pipeline safety. INGAA stated that it understands the value of the proposed requirement to validate that the requirements of this rule have been implemented, since it could engender increased confidence and oversight of the respective control rooms and associated processes.
INGAA stated that it sees no demonstrable safety benefit discussed in the proposed rule and there are no tangible benefits to be gained by promulgating this section.
One individual stated that the senior executive officer validation should be required every three years.
Agency response—The purpose of this proposed provision was to assure management attention to control room issues. A senior executive would have been required to certify annually that the operator had reviewed controller training and qualification programs and found them adequate, that only qualified controllers had been allowed to operate the pipeline, that the requirements of this rule had been complied with, that the operator continued to address fatigue and ergonomic issues, and that controllers were involved in continuing efforts to sustain and improve safety. This was not intended to substitute for approval of a plan by the regulator, but rather to assure that a plan submitted to the regulator had obtained appropriate management approval within the operator's organization.
PHMSA agrees with commenters that it is likely that specific actions included within the proposed verification would be performed by lower-level managers and staff. The extent of actions that might have been required (or implied) was unclear in some cases. For example, ergonomic issues are not otherwise addressed in the proposed rule, but only in the proposed requirement that a senior officer certify that they were continuing to be addressed. PHMSA has, therefore, decided not to include the proposed requirement for periodic management certification in this rulemaking action.
PHMSA has included in this final rule a requirement that operators, upon request, must submit their completed control room management plans to PHMSA or, in the case of an intrastate pipeline facility regulated by the state, to the appropriate state agency. PHMSA expects that regulators (state or PHMSA) will generally review plans, and compliance with the requirements of this final rule, through the regular inspection process.
INGAA stated that it supported the development of 49 CFR part 192, subpart N, when it was initially promulgated, and still believes it to be valid, including as it applies to controllers. Also, INGAA stated that it supports the use of the national consensus-based standard ASME B31Q, which addresses controller issues as well. INGAA stated that it does not see the need for a qualification section in this proposed rule, and notes the PIPES Act does not contemplate this section, either.
API and AOPL stated that they believe PHMSA would create confusion by keeping this particular paragraph in the final rule. They recommend that PHMSA delete proposed paragraph (i) and consider incorporating the requirements into the current subpart G—Qualification of Pipeline Personnel. They stated that if “qualification” refers to any other purpose than “OQ”, then PHMSA needs to clarify that requirement. API and AOPL stated that they support the concept in paragraph (i)(2) of the proposed rule concerning evaluating a controller's physical abilities; however, they recommended that it be deleted because it creates confusion among operators until further research can be performed to develop standardized thresholds for the various physical attributes. Also, they stated their concern that compliance with the requirements in this paragraph could result in violation of the Americans with Disabilities Act.
AGA expressed concern that PHMSA is essentially rewriting the Operator Qualification rule. AGA stated that the two paragraphs for controller training and qualification are almost as long as 49 CFR part 192, subpart N, which provides operator qualification rules for all pipeline covered employees.
Agency response—PHMSA is persuaded by the comments to eliminate from this final rule specific requirements for periodic qualification of controllers, deferring to the existing operator qualification regulations in that regard. PHMSA recognizes, however, that certain changes to operators' controller qualification criteria will result from implementing the new requirements in this final rule and that operators will incorporate those changes, as necessary, into their qualification programs.
The proposed rule would have established different deadlines for preparing and implementing control room management procedures,
Agency response—The elimination of local control stations from the final rule's scope, and its focus on control rooms using SCADA systems, makes it unnecessary to establish differing implementation schedules for control regimes of differing complexity. PHMSA agrees that the implementation time frames proposed by the joint trade associations would allow for a thorough process development phase before implementation, a familiarity with standards under development (such as International Society of Automation (ISA) 18.02 and API RP 1167), and an appropriate implementation time to promote consistency and understanding among operators. We have therefore, incorporated these time frames into the final rule.
This final rule is published under the authority of the Federal Pipeline Safety Law (49 U.S.C. 60101
This rulemaking action has been designated a significant regulatory action under Executive Order 12866 (58 FR 51735; Oct. 4, 1993). The rule is also a significant regulatory action under the U.S. Department of Transportation regulatory policies and procedures (44 FR 11034; Feb. 26, 1979) because of the substantial congressional, industry, and public interest in control room operations and human factors management plans. Therefore, the Office of Management and Budget (OMB) has reviewed a copy of this rulemaking.
The expected benefits of the rulemaking action are the reduction in pipeline incidents and accidents resulting from controller error and the associated societal costs that can be attributed to improved control room management and operations. The estimated benefits consist of two distinct measures: (1) The reduction in incidents and accidents due to errors attributed to control room personnel and (2) the reduction of societal costs related to those incidents and accidents that can be traced to factors related to control room operations management. Control room personnel errors can occur, for example, when a fatigued control room worker reads a pressure indicator incorrectly and increases pressure, leading to a pipeline rupture. Control room management errors occur when a procedure or process is not in place resulting in failure to detect an abnormal condition or a failure to respond to an incident or accident appropriately. For example, alarm systems may not be audited and an incident occurs that does not trigger an alarm. The remedial action (the rule) addresses both personnel error and operations management.
This rulemaking action is not expected to adversely affect the economy or the environment. For those costs and benefits that can be quantified the present value of net benefits, discounted at 7 percent, are expected to be about $6 million over a ten-year period after all of the requirements are implemented. This rule is also not expected to have an annual effect of more than $100 million on the national economy; therefore, the rule is not considered an economically significant regulatory action within the meaning of Executive Order 12866.
A complete RIA, including an analysis of costs and benefits, is available in the docket.
Under the Regulatory Flexibility Act (5 U.S.C. 601
Second, to better understand the distribution of systems based on size in the pipeline industry, PHMSA examined the operators' annual reports to further separate the firms by small, medium and large operations. The categories for this analysis were determined either by the number of pipeline miles, the number of customers served, or the complexity of the business. PHMSA has made every effort to limit the economic impact to small firms by taking steps to exempt gas distribution operators with fewer than 250,000 services from many of the requirements likely to have more than minimal cost impacts.
Based on the submission of annual reports, PHMSA estimates that there are 220 hazardous liquid (HL) system operators with fewer than 50 miles of pipeline that meet the definition of small entities. Also PHMSA estimated that 1,257 of 1,330 gas distribution systems and 475 of 950 transmission systems (for a total of 1,732 gas systems) fit the definition of a small operator.
The table below summarizes the expected compliance cost per small operator.
Although PHMSA does not have revenue data for the individual small pipeline operators, based on the most recent published operator revenue data, the estimated costs are significantly less than one percent of revenues for most firms and there is not likely to be a significant impact on a substantial small number of operators.
Therefore, based on this information showing that the economic impact of this rule on small entities will be minor, I certify under section 605 of the Regulatory Flexibility Act that these regulations will not have a significant impact on a substantial number of small entities. The final Regulatory Flexibility Analysis is available in the docket.
PHMSA has analyzed this rulemaking action according to Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because this rulemaking action would not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), DOT will submit all necessary documents to request the Office of Management and Budget (OMB) grant approval for a new information collection. A copy of the analysis document will also be entered in the docket. The RIA contains detailed information on how PHMSA arrived at the cost and time estimates noted below.
This final rule contains information collection requirements that affect hazardous liquid and gas pipeline systems. The rule requires hazardous liquid and gas pipeline operators to keep records on the following sections: Control room management procedures; roles and responsibilities of pipeline controllers; information on SCADAs, fatigue mitigation; alarm management; change management; operating experience; training; compliance validation; and deviations. PHMSA estimates that it would take pipeline operators approximately 127,328 hours per year to comply with the rule's recordkeeping and record retention requirements. PHMSA estimates that the total costs are approximately between $4.3 million and $5.9 million the first-year and approximately between $4.2 million and $5.8 million in successive years. The RIA has the details on the estimates used in this analysis.
This rulemaking action does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of this rulemaking action.
PHMSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act (42 U.S.C. 4321
PHMSA has analyzed this rulemaking action according to Executive Order 13132 (“Federalism”). The rulemaking action does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This rulemaking action does not impose substantial direct compliance costs on State and local governments. Further, no consultation is needed to discuss the preemptive effect of the proposed rule. The pipeline safety laws, specifically 49 U.S.C. 60104(c), prohibits State safety regulation of interstate pipelines. Under the pipeline safety law, States have the ability to augment pipeline safety requirements for intrastate pipelines regulated by PHMSA, but may not approve safety requirements less stringent than those required by Federal law. A State may also regulate an intrastate pipeline facility PHMSA does not regulate. It is these statutory provisions, not the rule, that govern preemption of State law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
Transporting gas and hazardous liquids impacts the nation's available energy supply. However, this rulemaking action is not a “significant energy action” under Executive Order 13211 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, the Administrator of the Office of Information and Regulatory Affairs has not identified this rulemaking action as a significant energy action.
You may search the electronic form of comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Incorporation by reference, Gas, Natural gas, Pipeline safety, Reporting and recordkeeping requirements.
Anhydrous ammonia, Carbon dioxide, Incorporation by reference, Petroleum, Pipeline safety, Reporting and recordkeeping requirements.
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, 60118, and 60137; and 49 CFR 1.53.
(c) * * *
(2) * * *
(b) * * *
(12) Implementing the applicable control room management procedures required by § 192.631.
(a) * * *
(11) Actions required to be taken by a controller during an emergency in accordance with § 192.631.
(a)
(1) This section applies to each operator of a pipeline facility with a controller working in a control room who monitors and controls all or part of a pipeline facility through a SCADA system. Each operator must have and follow written control room management procedures that implement the requirements of this section, except that for each control room where an operator's activities are limited to either or both of:
(i) Distribution with less than 250,000 services, or
(ii) Transmission without a compressor station, the operator must have and follow written procedures that implement only paragraphs (d) (regarding fatigue), (i) (regarding compliance validation), and (j) (regarding compliance and deviations) of this section.
(2) The procedures required by this section must be integrated, as appropriate, with operating and emergency procedures required by §§ 192.605 and 192.615. An operator must develop the procedures no later than August 1, 2011 and implement the procedures no later than Febraury 1, 2012.
(b)
(1) A controller's authority and responsibility to make decisions and take actions during normal operations;
(2) A controller's role when an abnormal operating condition is detected, even if the controller is not the first to detect the condition, including the controller's responsibility to take specific actions and to communicate with others;
(3) A controller's role during an emergency, even if the controller is not the first to detect the emergency, including the controller's responsibility to take specific actions and to communicate with others; and
(4) A method of recording controller shift-changes and any hand-over of responsibility between controllers.
(c)
(1) Implement sections 1, 4, 8, 9, 11.1, and 11.3 of API RP 1165 (incorporated by reference, see § 192.7) whenever a SCADA system is added, expanded or replaced, unless the operator demonstrates that certain provisions of sections 1, 4, 8, 9, 11.1, and 11.3 of API RP 1165 are not practical for the SCADA system used;
(2) Conduct a point-to-point verification between SCADA displays and related field equipment when field equipment is added or moved and when other changes that affect pipeline safety are made to field equipment or SCADA displays;
(3) Test and verify an internal communication plan to provide adequate means for manual operation of the pipeline safely, at least once each calendar year, but at intervals not to exceed 15 months;
(4) Test any backup SCADA systems at least once each calendar year, but at intervals not to exceed 15 months; and
(5) Establish and implement procedures for when a different controller assumes responsibility, including the content of information to be exchanged.
(d)
(1) Establish shift lengths and schedule rotations that provide controllers off-duty time sufficient to achieve eight hours of continuous sleep;
(2) Educate controllers and supervisors in fatigue mitigation strategies and how off-duty activities contribute to fatigue;
(3) Train controllers and supervisors to recognize the effects of fatigue; and
(4) Establish a maximum limit on controller hours-of-service, which may provide for an emergency deviation from the maximum limit if necessary for the safe operation of a pipeline facility.
(e)
(1) Review SCADA safety-related alarm operations using a process that ensures alarms are accurate and support safe pipeline operations;
(2) Identify at least once each calendar month points affecting safety that have been taken off scan in the SCADA host, have had alarms inhibited, generated false alarms, or that have had forced or manual values for periods of time exceeding that required for associated maintenance or operating activities;
(3) Verify the correct safety-related alarm set-point values and alarm descriptions at least once each calendar year, but at intervals not to exceed 15 months;
(4) Review the alarm management plan required by this paragraph at least once each calendar year, but at intervals not exceeding 15 months, to determine the effectiveness of the plan;
(5) Monitor the content and volume of general activity being directed to and required of each controller at least once each calendar year, but at intervals not to exceed 15 months, that will assure controllers have sufficient time to analyze and react to incoming alarms; and
(6) Address deficiencies identified through the implementation of paragraphs (e)(1) through (e)(5) of this section.
(f)
(1) Establish communications between control room representatives, operator's management, and associated field personnel when planning and implementing physical changes to pipeline equipment or configuration;
(2) Require its field personnel to contact the control room when emergency conditions exist and when making field changes that affect control room operations; and
(3) Seek control room or control room management participation in planning prior to implementation of significant pipeline hydraulic or configuration changes.
(g)
(1) Review incidents that must be reported pursuant to 49 CFR part 191 to determine if control room actions contributed to the event and, if so, correct, where necessary, deficiencies related to:
(i) Controller fatigue;
(ii) Field equipment;
(iii) The operation of any relief device;
(iv) Procedures;
(v) SCADA system configuration; and
(vi) SCADA system performance.
(2) Include lessons learned from the operator's experience in the training program required by this section.
(h)
(1) Responding to abnormal operating conditions likely to occur simultaneously or in sequence;
(2) Use of a computerized simulator or non-computerized (tabletop) method for training controllers to recognize abnormal operating conditions;
(3) Training controllers on their responsibilities for communication under the operator's emergency response procedures;
(4) Training that will provide a controller a working knowledge of the pipeline system, especially during the development of abnormal operating conditions; and
(5) For pipeline operating setups that are periodically, but infrequently used, providing an opportunity for controllers to review relevant procedures in advance of their application.
(i)
(j)
(1) Records that demonstrate compliance with the requirements of this section; and
(2) Documentation to demonstrate that any deviation from the procedures required by this section was necessary for the safe operation of a pipeline facility.
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60116, 60118, and 60137; and 49 CFR 1.53.
(c) * * *
(c) * * *
(15) Implementing the applicable control room management procedures required by § 195.446.
(e) * * *
(10) Actions required to be taken by a controller during an emergency, in accordance with § 195.446.
(a)
(b)
(1) A controller's authority and responsibility to make decisions and take actions during normal operations;
(2) A controller's role when an abnormal operating condition is detected, even if the controller is not the first to detect the condition, including the controller's responsibility to take specific actions and to communicate with others;
(3) A controller's role during an emergency, even if the controller is not the first to detect the emergency, including the controller's responsibility to take specific actions and to communicate with others; and
(4) A method of recording controller shift-changes and any hand-over of responsibility between controllers.
(c)
(1) Implement API RP 1165 (incorporated by reference,
(2) Conduct a point-to-point verification between SCADA displays and related field equipment when field equipment is added or moved and when other changes that affect pipeline safety are made to field equipment or SCADA displays;
(3) Test and verify an internal communication plan to provide adequate means for manual operation of the pipeline safely, at least once each calendar year, but at intervals not to exceed 15 months;
(4) Test any backup SCADA systems at least once each calendar year, but at intervals not to exceed 15 months; and
(5) Implement section 5 of API RP 1168 (incorporated by reference,
(d)
(1) Establish shift lengths and schedule rotations that provide controllers off-duty time sufficient to achieve eight hours of continuous sleep;
(2) Educate controllers and supervisors in fatigue mitigation strategies and how off-duty activities contribute to fatigue;
(3) Train controllers and supervisors to recognize the effects of fatigue; and
(4) Establish a maximum limit on controller hours-of-service, which may provide for an emergency deviation from the maximum limit if necessary for the safe operation of a pipeline facility.
(e)
(1) Review SCADA safety-related alarm operations using a process that ensures alarms are accurate and support safe pipeline operations;
(2) Identify at least once each calendar month points affecting safety that have been taken off scan in the SCADA host, have had alarms inhibited, generated false alarms, or that have had forced or manual values for periods of time exceeding that required for associated maintenance or operating activities;
(3) Verify the correct safety-related alarm set-point values and alarm descriptions when associated field instruments are calibrated or changed and at least once each calendar year, but at intervals not to exceed 15 months;
(4) Review the alarm management plan required by this paragraph at least once each calendar year, but at intervals not exceeding 15 months, to determine the effectiveness of the plan;
(5) Monitor the content and volume of general activity being directed to and required of each controller at least once each calendar year, but at intervals not exceeding 15 months, that will assure controllers have sufficient time to analyze and react to incoming alarms; and
(6) Address deficiencies identified through the implementation of paragraphs (e)(1) through (e)(5) of this section.
(f)
(1) Implement section 7 of API RP 1168 (incorporated by reference, see § 195.3) for control room management change and require coordination between control room representatives, operator's management, and associated field personnel when planning and implementing physical changes to pipeline equipment or configuration; and
(2) Require its field personnel to contact the control room when emergency conditions exist and when making field changes that affect control room operations.
(g)
(1) Review accidents that must be reported pursuant to § 195.50 and 195.52 to determine if control room actions contributed to the event and, if so, correct, where necessary, deficiencies related to:
(i) Controller fatigue;
(ii) Field equipment;
(iii) The operation of any relief device;
(iv) Procedures;
(v) SCADA system configuration; and
(vi) SCADA system performance.
(2) Include lessons learned from the operator's experience in the training program required by this section.
(h)
(1) Responding to abnormal operating conditions likely to occur simultaneously or in sequence;
(2) Use of a computerized simulator or non-computerized (tabletop) method for training controllers to recognize abnormal operating conditions;
(3) Training controllers on their responsibilities for communication under the operator's emergency response procedures;
(4) Training that will provide a controller a working knowledge of the pipeline system, especially during the development of abnormal operating conditions; and
(5) For pipeline operating setups that are periodically, but infrequently used, providing an opportunity for controllers to review relevant procedures in advance of their application.
(i)
(j)
(1) Records that demonstrate compliance with the requirements of this section; and
(2) Documentation to demonstrate that any deviation from the procedures required by this section was necessary for the safe operation of the pipeline facility.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During an elevator Power Control Unit (PCU) Centering Functional Check on two CL–600–2C10 aircraft, sustained oscillations were discovered when a control rod was disconnected. These sustained oscillations could render the elevator surface inoperable and cause subsequent loss of pitch control of the aircraft.
Loss of pitch control could result in reduced controllability of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by January 19, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; e-mail
You may examine the AD docket on the Internet at
Christopher Alfano, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7340; fax (516) 794–5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.
We will post all comments we receive, without change, to
Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF–2009–28, issued June 29, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During an elevator Power Control Unit (PCU) Centering Functional Check on two CL–600–2C10 aircraft, sustained oscillations were discovered when a control rod was disconnected. These sustained oscillations could render the elevator surface inoperable and cause subsequent loss of pitch control of the aircraft.
This directive mandates incorporation of a new centering mechanism on the elevator torque tube to prevent these sustained oscillations.
Bombardier has issued Service Bulletin 670BA–27–042, Revision B, dated June 2, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 260 products of U.S. registry. We also estimate that it would take about 35 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $27,626 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $7,910,760, or $30,426 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by January 19, 2010.
(b) None.
(c) This AD applies to the Bombardier, Inc., airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Model CL–600–2C10 (Regional Jet Series 700, 701 & 702) airplanes having serial numbers 10003 through 10259 inclusive.
(2) Model CL–600–2D15 (Regional Jet Series 705) and Model CL–600–2D24 (Regional Jet Series 900) airplanes having serial numbers 15001 through 15099 inclusive.
(d) Air Transport Association (ATA) of America Code 27: Flight controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
During an elevator Power Control Unit (PCU) Centering Functional Check on two CL–600–2C10 aircraft, sustained oscillations were discovered when a control rod was disconnected. These sustained oscillations could render the elevator surface inoperable and cause subsequent loss of pitch control of the aircraft.
This directive mandates incorporation of a new centering mechanism on the elevator torque tube to prevent these sustained oscillations.
(f) Unless already done, do the following actions.
(1) Within 6,000 flight hours after the effective date of this AD, install a new PCU centering mechanism, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA–27–042, Revision B, dated June 2, 2009.
(2) Incorporation of Bombardier Service Bulletin 670BA–27–042, dated October 14, 2008; or Revision A, dated January 8, 2009; before the effective date of this AD, is considered acceptable for compliance with this AD only if Bombardier Repair Engineering Order (REO) 670–27–31–001, dated January 12, 2009; or Bombardier Service Non-Incorporated Engineering Order (SNIEO) S01 or S02 from Bombardier Kit Drawing KBA670–93702, Revision C, dated January 28, 2009; is incorporated at the same time.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone 516–228–7300; fax 516–794–5531.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(h) Refer to Canadian Airworthiness Directive CF–2009–28, issued June 29, 2009; and Bombardier Service Bulletin 670BA–27–042, Revision B, dated June 2, 2009; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During testing, it was discovered that when the outflow valve (OFV) manual mode connector is not connected, the manual mode motor and altitude limitation are not properly tested. Consequently, a disconnect of the OFV manual mode and/or a related wiring failure could potentially result in a dormant loss of several CPC [cabin pressure control] backup/safety functions, including OFV manual control, altitude limitation, emergency depressurization and smoke clearance.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by January 19, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; e-mail
You may examine the AD docket on the Internet at
Fabio Buttitta, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7303; fax (516) 794–5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.
We will post all comments we receive, without change, to
On May 6, 2009, we issued AD 2009–10–10, Amendment 39–15906 (74 FR 22646, May 14, 2009). That AD required actions intended to address an unsafe condition on the products listed above. AD 2009–10–10 states that the planned compliance times for certain actions (paragraphs (f)(2) and (f)(3) of AD 2009–10–10 allow modification (software update) of the cabin pressure control units and cabin pressure control panels, which constituted optional terminating action for the required inspections) would allow enough time to provide notice and opportunity for prior public comment on the merits of those actions. We now have determined that further rulemaking is necessary to mandate the previously optional actions. This AD follows from that determination.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 353 products of U.S. registry.
The actions that are required by AD 2009–10–10 and retained in this proposed AD take about 2 work-hours per product, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $160 per product.
We estimate that it would take about 3 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $43,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the new basic requirements of this proposed AD on U.S. operators to be $15,263,720, or $43,240 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39–15906 (74 FR 22646, May 14, 2009) and adding the following new AD:
(a) We must receive comments by January 19, 2010.
(b) The proposed AD supersedes AD 2009–10–10, Amendment 39–15906.
(c) This AD applies to Bombardier Model CL–600–2C10 (Regional Jet Series 700, 701, & 702) airplanes, certificated in any category, serial numbers 10003 through 10260 inclusive; and Model CL–600–2D15 (Regional Jet Series 705) and CL–600–2D24 (Regional Jet Series 900) airplanes, certificated in any category, serial numbers 15001 through 15095 inclusive.
(d) Air Transport Association (ATA) of America Code 21: Air Conditioning.
(e) The mandatory continuing airworthiness information (MCAI) states:
During testing, it was discovered that when the outflow valve (OFV) manual mode connector is not connected, the manual mode motor and altitude limitation are not properly tested. Consequently, a disconnect of the OFV manual mode and/or a related wiring failure could potentially result in a dormant loss of several CPC [cabin pressure control] backup/safety functions, including OFV manual control, altitude limitation, emergency depressurization and smoke clearance. This deficiency is applicable to CPC units, Part Number (P/N) GG670–98002–3 and –5, and CPCP [cabin pressure control panel], Part Number GG670–98001–5, –7 and –9.
This directive mandates an interim repetitive check of the OFV manual mode motor and altitude limitation functions, followed by modification (software update) of the CPC units and the CPCP.
(f) Unless already done, do the following actions. Within 450 flight hours after May 29, 2009 (the effective date of AD 2009–10–10), inspect the OFV for proper operation of the manual mode motor and altitude limitation functions, in accordance with Part A of the Accomplishment Instructions of Bombardier Alert Service Bulletin A670BA–21–022, dated August 3, 2006 (“the service bulletin”). If the OFV manual mode motor or altitude limitation functions do not operate properly, before further flight, do the actions specified in paragraphs (f)(1) and (f)(2) of this AD. Repeat the inspection thereafter at intervals not to exceed 450 flight hours. Accomplishing the actions specified in
(1) Make sure that the electrical connectors, MPE23P1 and MPE23P2, are connected to the OFV.
(2) Repeat the inspection of the OFV for proper operation of the manual mode motor and altitude limitation functions, in accordance with Part A of the service bulletin. If the OFV manual mode motor or altitude limitation functions do not operate properly, before further flight, replace the OFV with a new or serviceable valve in accordance with Tasks 21–32–01–000–801 and 21–32–01–400–801 of the Bombardier CRJ Regional Jet Series Aircraft Maintenance Manual, CSP B–001, Part 2, Volume 1, Revision 28, dated January 20, 2009, and do the inspection of the OFV specified in paragraph (f) of this AD.
(g) Unless already done, do the following actions.
(1) Prior to accomplishing paragraph (g)(2) of this AD: Install modified or new CPC units, part number GG670–98002–7, in accordance with Part B of the Accomplishment Instructions of Bombardier Alert Service Bulletin A670BA–21–022, dated August 3, 2006.
(2) Within 4,500 flight hours after the effective date of this AD: Install modified or new CPCPs, part number GG670–98001–11, in accordance with Part C of the Accomplishment Instructions of Bombardier Alert Service Bulletin A670BA–21–022, dated August 3, 2006. Doing the actions required by paragraph (g)(2) of this AD terminates the requirements of paragraph (f) of this AD.
This AD differs from the MCAI and/or service information as follows: The MCAI and Bombardier Alert Service Bulletin A670BA–21–022, dated August 3, 2006, do not describe corrective actions for findings of improper OFV manual mode motor and altitude limitation functions. This AD requires the actions in paragraphs (f)(1) and (f)(2) of this AD, which include replacing the valve if the OFV manual mode motor or altitude limitation functions do not operate properly.
(h) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE–170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7300; fax (516) 794–5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(i) Refer to MCAI Canadian Airworthiness Directive CF–2009–08, dated March 9, 2009; Bombardier Alert Service Bulletin A670BA–21–022, dated August 3, 2006; and Tasks 21–32–01–000–801 and 21–32–01–400–801 of the Bombardier CRJ Regional Jet Series Aircraft Maintenance Manual, CSP B–001, Part 2, Volume 1, Revision 28, dated January 20, 2009; for related information.
Office of Labor-Management Standards, Department of Labor.
Notice of proposed extension of filing due date.
This proposed rule seeks public comment on a proposal to delay the filing due date of the Form T–1, Trust Annual Report. The Form T–1 is an annual financial disclosure report to be filed, pursuant to the Labor-Management Reporting and Disclosure Act (LMRDA), by labor unions with total annual receipts of $250,000 or more about certain trusts in which they are interested. Labor unions would use the Form T–1 to disclose financial information about the trusts, such as assets, liabilities, receipts, and disbursements. The Department established the Form T–1 with a final rule published on October 2, 2008, 73 FR 57412 (Oct. 2, 2008), with an effective date of January 1, 2009. Subsequently, the Department announced its intention to propose withdrawal of the Form T–1 (Spring 2009 Regulatory Agenda). The Department held a public meeting on July 21, 2009, and received comments from interested parties concerning provisions of the Form T–1 and its proposed rescission. The Department now seeks comments on a proposal to delay the filing due date of the initial Form T–1 reports, pending the outcome of the Department's proposal to withdraw the October 2, 2008 rule.
This proposed rule proposes to delay for one calendar year the filing due dates for Form T–1 reports required to be filed during calendar year 2010. The comment period on this proposal will close on December 14, 2009.
You may submit comments, identified by RIN 1215–AB75, only by the following methods:
The Office of Labor-Management Standards (OLMS) recommends that you confirm receipt of your delivered comments by contacting (202) 693–0123 (this is not a toll-free number). Individuals with hearing impairments may call (800) 877–8339 (TTY/TDD). Only those comments submitted through
Denise M. Boucher, Director, Office of Policy, Reports and Disclosure, Office of Labor-Management Standards, U.S.
On October 2, 2008, the Department of Labor, Office of Labor-Management Standards (OLMS), published a Final Rule establishing the Form T–1, Trust Annual Report. 73 FR 57411. The Form T–1 is an annual financial disclosure report to be filed by labor unions about certain trusts in which they are interested. For an organization or fund to be a labor union's trust subject to Form T–1 reporting, it must be established by the labor union or have a governing body that includes at least one member appointed or selected by the labor union, and a primary purpose of the trust must be to provide benefits to the members of the labor union or their beneficiaries. Examples of such trusts include building and redevelopment corporations, educational institutes, credit unions, labor union and employer joint funds, and job targeting funds. Labor unions currently are required to disclose financial information about the trust, such as assets, liabilities, receipts and disbursements through use of Form T–1.
Labor unions with total annual receipts of $250,000 or more (those required to file Form LM–2, Labor Organization Annual Report) are required to file the Form T–1 report. A labor union must file a Form T–1 report for each trust where the labor union, alone or in combination with other labor unions, appoints or selects a majority of the members of the trust's governing board or the labor union's contribution to the trust, alone or in combination with other labor unions, represents more than 50% of the trust's receipts. Contributions by an employer under a collective bargaining agreement are considered contributions by the labor union.
The Form T–1 rule also provides that unions will not be required to file a Form T–1 under certain circumstances, such as when the trust is a political action committee, if publicly available reports on the committee are filed with appropriate Federal or State agencies; an independent audit has been conducted for the trust, in accordance with standards set forth in the final rule; or the trust is required to file a Form 5500 with the Employee Benefits Security Administration (EBSA).
The Form T–1 final rule took effect on January 1, 2009. Filing due dates depend on the fiscal year ending dates of both the reporting union and the trust being reported. The fiscal year of both the labor union and its trust must begin on or after January 1, 2009, for a Form T–1 report to be owed, and the labor union must file any owed Form T–1 report within 90 days of the close of its own fiscal year. The earliest Form T–1 reports are required of unions that have, and whose trusts have, a fiscal year start date of January 1, 2009. These first Form T–1 reports are therefore due on or after January 1, 2010, but no later than March 31, 2010.
In the Spring 2009 Regulatory Agenda, the Department notified the public of its intent to initiate rulemaking proposing to rescind the Form T–1 and to require reporting of wholly owned, wholly controlled, and wholly financed (“subsidiary”) organizations on their Form LM–2 or LM–3 reports. See
In view of its plan to propose rescission of the Form T–1 Trust Annual Report, the Department now proposes to extend the filing due dates of Form T–1 reports that would otherwise be due in 2010, pending review and consideration of comments on the proposal to rescind. Extension of the filing due dates will delay or eliminate the first year recurring and nonrecurring burdens on labor organizations associated with the reporting requirements of the Form T–1 rule, pending the outcome of the proposed withdrawal. Without this proposal to delay the filing date of the initial Form T–1 reports, many affected labor organizations likely will incur the reporting costs and burdens associated with filing the form, including the nonrecurring first year costs and burdens associated with implementing the reporting system for the Form T–1. In particular, the October 2, 2008 rule estimated that unions would incur 41.20 hours in reporting burden per Form T–1 filed during the first year of the rule's implementation, for a total first year reporting burden of 128,978.11 hours. The estimated reporting cost per form filed in the first year is $1,632.41, and the estimated reporting cost in the first year for all projected Form T–1 filings is $5,110,324.80. The Department notes that the first year burden is higher than that in later years, which is estimated to be 28.28 hours per form filed and 88,542.01 hours total. 73 FR 57444–5. If the proposal to rescind the rule ultimately is effectuated, these expenses, including upfront costs, will have been incurred unnecessarily.
This proposal to delay the filing dates for Form T–1 reports due in 2010 would not affect the filing due date of Form T–1 reports that would be owed in any subsequent year. The Department's proposal would not extend the filing due date of any Form T–1 report that normally would be due during calendar year 2011 or beyond. Further, in the event that the Department determines to retain the Form T–1 rule, the initial Form T–1 reports that would have been due during 2010 must be filed in 2011, in addition to those Form T–1 reports normally due in 2011.
For the foregoing reasons, the Department has determined to propose delay of the filing dates of Form T–1 reports due during calendar year 2010 and seeks comment on this proposal.
Federal Communications Commission.
Proposed rule.
The Commission has before it a petition for rulemaking filed Ketchikan TV, LLC (“Ketchikan”), the permittee of KDMD(TV), channel 32, Anchorage, Alaska. Ketchikan requests the substitution of channel 33 for channel 32 at Anchorage.
Comments must be filed on or before December 18, 2009, and reply comments on or before December 28, 2009.
Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: James M. Talens, Esq., 6017 Woodley Road, McLean, VA 22101.
Adrienne Y. Denysyk,
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 09–210, adopted November 24, 2009, and released November 25, 2009. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY–A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS (
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Television, Television broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336.
2. Section 73.622(i), the Post-Transition Table of DTV Allotments under Alaska, is amended by adding channel 33 and removing channel 32 at Anchorage.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list Sprague's pipit (
To allow us adequate time to conduct this review, we request that we receive information on or before February 1, 2010. After this date, you must submit information directly to the North Dakota Field Office (
You may submit information by one of the following methods:
•
•
We will post all information received on
Jeffrey K. Towner, Field Supervisor, North Dakota Field Office, 3425 Miriam Avenue, Bismarck, North Dakota 58501–7926, telephone (701) 250–4481, extension 508. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at (800) 877–8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on Sprague's pipit from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species or its habitat.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include.
If, after the status review, we determine that listing the Sprague's pipit is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the Sprague's pipit, we request data and information on:
(1) What may constitute “physical or biological features essential to the conservation of the species”;
(2) Where these features are currently found; and
(3) Whether any of these features may require special management considerations or protection.
In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 3(5)(A) and section 4(b) of the Act.
Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your information concerning this status review by one of the methods listed in the
Information and supporting documentation that we received and used in preparing this finding will be available for you to review at
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information contained in the petition, supporting information submitted with the petition, and information otherwise readily available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of this finding promptly in the
Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly review the status of the species, which is subsequently summarized in our 12-month finding.
On October 10, 2008, we received a petition dated October 9, 2008, from WildEarth Guardians (hereinafter referred to as the “petitioner”) requesting that the Sprague's pipit be listed as endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required at 50 CFR 424.14(a). In a December 5, 2008, letter to the petitioner, we responded that we had reviewed the petition and determined that an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that we had received a draft budget allocation to complete the 90-day finding for this species in Fiscal Year 2009. On January 28, 2009, we received a 60-day Notice of Intent (NOI) to sue from the petitioner stating that the Service was in violation of the Act by failing to take action under section 4(b)(3)(A) of the Act. On August 20, 2009, the petitioner filed a complaint on the Service's failure to complete the 90-day finding. This finding addresses the October 10, 2008, petition.
There have been no previous Federal actions concerning this species.
The Sprague's pipit is a small passerine of the family Motacillidae that is endemic to the Northern Great Plains (Robbins and Dale 1999, p. 1). The genus
Sprague's pipits are generally ground feeders, eating primarily arthropods, although they may feed on seeds during migration and the wintering period (Audubon 2007, p. 3). When flushed, they have an undulating flight. The males have a territorial flight display that can last up to 3 hours (Robbins and Dale 1999, p. 22).
The nest is generally constructed in dense, relatively tall grass with a low forb density and little bare ground (Sutter 1997, p. 462). The nest is usually dome shaped. It is constructed from woven grasses and is generally at the end of a covered, sharply curved runway up to 15 cm (5.9 in.) long which may serve as heat-stress protection (Sutter 1997, p. 467; Dechant
During the breeding season, Sprague's pipits prefer large patches of native grassland with a minimum size of approximately 72 acres (29 hectares) (Davis 2004, pp. 1130, 1134–1135). They are much less common or not present in areas with introduced grasses than in areas containing native prairie (Madden 1996, p. 104). Nests are located in areas with relatively tall, dense cover (Dieni and Jones 2003, p. 392), dominated by grasses and sedges (Sutter 1997, p. 464). They will use nonnative replanted grassland if the vegetative structure is suitable, but strongly prefer native prairie (Dechant
The native prairie habitat that Sprague's pipits use is disturbance dependant. Without disturbance (historically grazing by bison or fire, today more often grazing by cattle or mowing for hay), the species mix changes and grasslands are ultimately overgrown with woody vegetation (Grant
The species was described as abundant in the late 1800's (Coues 1874, p. 42; Seton 1890, p. 626). Currently in the United States, Sprague's pipits breed throughout North Dakota, except for the easternmost counties; in northern and central Montana east of the Rocky Mountains; in northern portions of South Dakota; and in northeastern Minnesota. In Canada, Sprague's pipits breed in southeastern Alberta, the southern half of Saskatchewan, and in southwest Manitoba. Their wintering range includes south-central and southeast Arizona, Texas, southern Oklahoma, southern Arkansas, northwest Mississippi, southern Louisiana, and northern Mexico. There have been sightings in Michigan, western Ontario, Ohio, Massachusetts, and Gulf and Atlantic States from Mississippi east and north to South Carolina. Sprague's pipits have also been sighted in California during fall migration (Robbins and Dale 1999, p. 6).
Sprague's pipit is included on a number of Federal, State, and nongovernmental organization lists as a sensitive species. For example, its status is listed as vulnerable on the International Union of Conservation Networks Red List (International Union of Conservation Networks 2008). It has a NatureServe Global Rank of G4, indicating that the population is apparently secure (NatureServe 2008). The species is ranked as yellow on the Audubon 2007 watch list, indicating that it is “either declining or rare. These typically are species of national conservation concern” (Audubon 2007, p. 2). Partners in Flight also has placed Sprague's pipit on its yellow list, indicating that the species is a species of conservation concern at the global scale, a species in need of management action, and a high priority candidate for rapid status assessment (Rich
The petitioner reported that several States have identified the Sprague's pipit in various rankings indicating that it is sensitive including: Arizona (species of greatest conservation need), Minnesota (endangered), Montana (species of concern), New Mexico (species of greatest conservation need, vulnerable), North Dakota (Level I species in greatest need of conservation), and South Dakota (Level III—modest conservation priority but low abundance score) (WildEarth Guardians 2008, pp. 31–32).
Due to its cryptic coloring and secretive nature, the Sprague's pipit has been described as “one of the least known birds in North America” (Robbins and Dale 1999, p. 1), and specific range-wide surveys for the species have not been conducted. However, long-term estimates of Sprague's pipit abundance have come from the Breeding Bird Survey (BBS), a long-term, large-scale survey of North American birds that began in 1966. The BBS is generally conducted by observers driving along set routes, stopping every half-mile to sample for birds. Since there is some evidence that Sprague's pipits avoid roads (Sutter
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
In making this 90-day finding, we evaluated whether information regarding threats to the Sprague's pipit, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petition outlines numerous assertions regarding the present or threatened destruction, modification, or curtailment of the Sprague's pipit's habitat or range, including:
(1) The loss of native prairie throughout the Northern Great Plains range of the species as a result of agricultural conversion, invasion of exotic plants, haying practices, livestock grazing, and fire suppression;
(2) Changes in prairie management since European colonization that have allowed shrub, tree, and weed encroachment throughout the prairie;
(3) The infrastructure associated with oil and gas exploration and extraction;
(4) The proliferation of roads throughout the Sprague's pipit's range, which reduce the amount of suitable habitat available for their use; and
(5) Ongoing fragmentation of prairie habitat that may leave grassland areas too small for Sprague's pipit use.
We generally find that the information presented by the petitioner appears to be reliable and substantial in regard to the amount of habitat modification and alteration that has occurred within the range of the Sprague's pipit. Sprague's pipits do not nest in cropland (Owens and Myres 1973, p. 697; Wells 2007, p. 297), so widespread conversion from prairie to cropland negatively impacts the species because it reduces the amount of habitat available for nesting. Between 2006 and 2007 alone, as corn prices increased by more than one dollar a bushel, approximately 15 million additional acres (6 million hectares) were planted in corn in the United States, although this was not necessarily all newly plowed areas and not all within the range of the Sprague's pipit (U.S. Department of Agriculture 2009, p. 2).
Land cover images of the Great Plains in the United States and Canada indicate that only 30 percent of prairie habitat remains from pre-colonial times (Samson
Sprague's pipits are strongly tied to native prairie (land which has never been plowed) (Owens and Myres 1973, p. 708), in general avoiding cropland and land in the Conservation Reserve Program (a program whereby marginal farmland is replanted with grass) (Higgins
Even in areas that remain in native prairie, management changes, including fencing, augmentation of water sources, replacing bison with cattle as the primary herbivore, and fire suppression, all have changed the landscape (Knopf 1994, pp. 248–250; Weltzin
It should be noted that substituting cattle for bison alone does not necessarily lead to a change in grassland vegetation. In a study comparing native prairie stocked with moderate levels of cattle or bison, Towne
Fire suppression since European settlement throughout the Sprague's pipit's range has impacted the composition and structure of native prairie, favoring the incursion of trees and shrubs in areas that were previously grassland (Knopf 1994, p. 251). This change of structure negatively impacts Sprague's pipits, which avoid grasslands containing even moderate densities of shrubs (Wells 2007, p. 297). Fire and grazing may differentially affect the vegetative species composition of grasslands, so eliminating fire from the landscape has likely changed the overall composition of the prairie. Trees and shrubs can be eliminated through grazing or regular mowing, although these management practices may result in selection for yet a different suite of grassland plant species (Owens and Myres 1973, pp. 700–701).
Mowing (
In the United States, approximately 5 percent of Sprague's pipit breeding, migratory, and wintering range (not including Texas for which data are not available) is encroached on by oil and gas wells or active leases (WildEarth Guardians 2008, p. 20). Much of the Sprague's pipit's breeding range overlaps with major areas of oil production in Montana and North Dakota. Oil production spiked in 2007 (the most recent year for which this information is available), with 494 drilling permits issued in 2007 in North
Each well pad requires associated new road construction, often involving several miles (kilometers) of new road for each pad. Several researchers have noted that Sprague's pipits avoid roadsides (Sutter
Birds that nest near a habitat edge, such as a road, may experience lower nest success because they may be more likely to be parasitized by cowbirds (Davis 1994, p. i) and because roads may serve as travel routes for predators (Pitman
Wind energy development has been exponentially increasing in recent years, with increases of more than 45 percent in 2007 and more than 50 percent in 2008 (Manville 2009, p. 1). Like oil, wind projects may fragment the native habitat with turbines, roads, transmission infrastructure, and associated facilities. A recent white paper examining the potential impacts of the wind industry on fish and wildlife determined that wind farms may adversely impact grassland songbirds, a group that is already in decline (Casey 2005, p. 4, Manville 2009, p. 1). Several of the States where the Sprague's pipit nests or winters are listed in the top 20 States for wind energy potential (American Wind Energy Association 1991).
Sprague's pipits appear to be area sensitive, preferring larger grassland patches, although the exact amount of habitat required is not known (Davis 2004, pp. 1135–1139). Davis (2004, p. 1139) found that the strongest predictor of Sprague's pipit presence was the amount of grassland within an 800-meter (2,500-foot) radius circle. An increase in all of the factors discussed above (
Sprague's pipits have undergone a sharp decline in the past 50 years as much of the once vast prairie habitat has been converted to other uses. One of the major causes of decline seems to be the loss of native grassland habitat throughout the species' range. On the basis of our evaluation, we determined that the petition presents substantial information that listing the Sprague's pipit as a threatened or endangered species may be warranted due to present or threatened destruction, modification, or curtailment of its habitat or range.
The petitioner asserts that there is no evidence that overutilization for commercial, recreational, scientific, or educational purposes is a threat at this time.
As noted above, Sprague's pipit has not been extensively studied for scientific purposes (
On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Sprague's pipit as a threatened or endangered species may be warranted due to the overutilization for commercial, recreational, scientific, or educational purposes. Additionally, we do not have substantial information in our files to suggest that overutilization for commercial, recreational, scientific, or educational purposes may threaten the Sprague's pipit. However, we will evaluate all factors, including threats from overutilization for commercial, recreational, scientific, or educational purposes, when we conduct our status review.
(1) The petitioner asserts that while disease does not appear to be a major threat at this time, it may become a threat due to changes in habitat distribution resulting from climate change and ensuing concentration of birds.
(2) The petitioner asserts that predation and cowbird nest parasitism cause up to 70 percent of grassland bird nest failures, including nest failures of Sprague's pipits. Cowbird parasitism may be generally lower for Sprague's pipits than for other grassland birds because of Sprague's pipit's tendency to avoid edge habitat. However, if Sprague's pipits are forced to use more edge habitat due to habitat fragmentation, cowbird parasitism may increase in the future.
We are not aware of information to indicate that disease poses a significant threat to Sprague's pipits at this time. The petitioner suggests that botulism may pose a risk if habitat fragmentation and climate change cause birds to be more concentrated on the remaining habitat. While habitat fragmentation may negatively impact Sprague's pipit as discussed in Factor A, botulism is primarily associated with waterfowl (United States Geological Survey 1999, p. 274), and so would not be expected to impact Sprague's pipit. Other diseases, such as avian influenza and West Nile virus may impact the Sprague's pipit, but we are not aware of any information indicating that those diseases pose a risk at this time.
The Intergovernmental Panel on Climate Change (2007, p. 51) suggests that the distribution of some disease vectors may change as a result of climate change. However, the Service has no information at this time to suggest that any specific disease may become problematic to Sprague's pipit.
Predation is thought to destroy up to 70 percent of grassland bird nests (in Davis 2003, p. 119). We assume that the
On the basis of our evaluation, we determined that the petition does not present substantial information indicating that listing the Sprague's pipit as a threatened or endangered species may be warranted due to disease or predation. While the level of predation for all grassland birds is high, we do not have information at this time to suggest that predation or cowbird parasitism is impacting Sprague's pipits at a level that threatens the species. Because Sprague's pipits select large grassland patches for nesting, they may be less susceptible to cowbird parasitism than other grassland species. Additionally, we do not have substantial information in our files to suggest that disease or predation threaten the Sprague's pipit. However, we will evaluate all factors, including threats from disease and predation, when we conduct our status review.
The petitioner asserts that the regulatory mechanisms to protect the Sprague's pipit in the United States are inadequate.
(1) Sprague's pipits are protected under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
(2) The petitioner reports that Sprague's pipit is listed as a State endangered species in Minnesota, and the Committee on the Status of Endangered Wildlife in Canada listed the Sprague's pipit as a threatened species in 2000. The species is on a number of watch lists from nongovernmental and quasi-governmental (supported by the government but privately managed) organizations. The petitioner states that, while these lists highlight concerns about the species, they do not provide substantial protection. The species enjoys no special protection throughout most of its range.
As the petitioner points out, while the Sprague's pipit is protected under the MBTA, this protection does not extend to the species' habitat. Habitat can be legally destroyed as long as it does not result in the direct take of birds protected by the MBTA.
As discussed under Factor A, a substantial amount of new oil and gas production is occurring in the breeding range of the Sprague's pipit. Currently, no regulatory mechanisms exist for many of these activities to ensure that drilling and associated activities avoid nesting habitat. In addition, we know of no regulatory mechanisms that protect this species' habitat outside of the breeding season.
Similarly, few regulations exist regarding the siting of wind farms in relation to wildlife resources. While the Service has developed interim guidelines for siting wind farms (Service 2003, pp. 1–57) to reduce impacts to wildlife and wildlife habitat, the guidelines are voluntary and are not consistently applied (or applied at all) on private land with no Federal nexus (Manville 2009, p.1). Special permits are required for wind energy development on National Wildlife Refuge System wetland and grassland easements. State permits are not required for wind farms in North Dakota or South Dakota unless they are larger than 100 megawatts, and no State permit is required in Montana (Association of Fish and Wildlife Agencies and U.S. Fish and Wildlife Service 2007). We are aware of no specific requirements in these State regulatory systems that protect migratory birds or their habitats.
As noted in Factor A, favorable market prices often encourage farmers to plow new land for crop production. There are no regulatory mechanisms that govern conversion of native grassland to cropland when migratory birds will be impacted.
On the basis of our evaluation, we find that there is substantial information in the petition and readily available in our files to indicate that listing the Sprague's pipit as a threatened or endangered species may be warranted due to the inadequacy of existing regulatory mechanisms, particularly regarding the effects of habitat loss and fragmentation due to energy development and farming practices.
The petitioner asserts that several other factors may affect the Sprague's pipit's continued existence including the following:
(1) The Sprague's pipit is sensitive to drought throughout its range;
(2) Climate change is likely to increase drought, changing the habitat to make it less suitable for the Sprague's pipit; and
(3) Activities to eradicate and harass birds in croplands, particularly programs to reduce the impacts of blackbirds on sunflower fields, are a threat to the Sprague's pipit.
In a short-term (3-year) study looking at drought and post-drought period in western North Dakota, George
Sprague's pipits prefer areas with relatively tall grass. Extreme drought may lead to poor grass growth and thus less optimal habitat (Dieni and Jones 2003, pp. 393–395). While the species can increase in abundance after a short-term drought ends, climate change may lead to drier conditions in much of the Sprague's pipit's range (Johnson
There is some variability between models in projecting the effect of future climate change on Sprague's pipit habitat. One model projected that the Sprague's pipit's breeding range would experience a wetter climate by the end of this century (United States Global Change Research Program Great Plains 2009, p. 125). In contrast, another model suggested that much of the remaining suitable habitat for Sprague's pipit nesting would likely become drier due to climate change (Johnson
Long-term effects of global climate change on Sprague's pipit habitat could have significant, deleterious effects, and should be monitored in the future. However, the climate change models are based on projections with some uncertainty (Johnson
The petitioner states that harassment of birds from cropland may negatively impact the birds' energy stores during migration, when they may already be low on reserves (Hagy
We find the information presented in the petition and readily available in our files on the subject of climate change to be insufficiently specific to the Sprague's pipit; however, the Intergovernmental Panel on Climate Change (IPCC) states that warming of the climate is unequivocal (IPCC 2007, p. 15). We intend to investigate the effects of climate change on the Sprague's pipit and its habitat further in the status review for the species.
While all of the following factors may negatively impact the Sprague's pipit, on the basis of our evaluation of the material provided in the petition and available in our files, we determined that the petition does not present substantial evidence indicating that listing the Sprague's pipit may be warranted based on drought, climate change, harassment, or poisoning of cropland.
On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the Sprague's pipit throughout all or a significant portion of its range may be warranted. This finding is based on information provided under Factors A and D. Because we have found that the petition presents substantial information that listing the Sprague's pipit may be warranted, we are initiating a status review to determine whether listing the Sprague's pipit under the Act is warranted. We will issue a 12-month finding as to whether the petitioned action is warranted.
The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
We encourage interested parties to continue gathering data that will assist with the conservation and monitoring of the Sprague's pipit. You may submit information regarding the Sprague's pipit by one of the methods listed in the
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the North Dakota Field Office (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of a 12–month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce our 12–month finding on a petition to list the black-tailed prairie dog (
The finding announced in this document was made on December 3, 2009.
This finding is available on the Internet at
Pete Gober, Field Supervisor, U.S. Fish and Wildlife Service, South Dakota Ecological Services Office (see
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
We received a petition dated October 21, 1994, from the Biodiversity Legal Foundation and Jon C. Sharps, to classify the black-tailed prairie dog as a Category 2 candidate species. Category 2 includes taxa for which information in our possession indicates that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. We reviewed the petition and on May 5, 1995, we concluded that the black-tailed prairie dog did not warrant Category 2 candidate status.
On July 31, 1998, we received a petition from the National Wildlife Federation dated July 30, 1998, to list the black-tailed prairie dog as threatened throughout its range. On August 26, 1998, we received another petition to list the black-tailed prairie dog as threatened throughout its range from the Biodiversity Legal Foundation, Predator Project, and Jon C. Sharps. We accepted this second request as supplemental information to the National Wildlife Federation petition. On February 4, 2000, we announced a 12–month finding that issuing a proposed rule to list the black-tailed prairie dog was warranted but precluded by other higher priority actions (65 FR 5476), and the species was included in the list of candidate species. Two candidate assessments and resubmitted petition findings for the black-tailed prairie dog were completed on October 30, 2001 (66 FR 54303), and June 13, 2002 (67 FR 40657). On August 18, 2004, we completed a resubmitted petition finding for the black-tailed prairie dog (69 FR 51217) concluding that listing the species was not warranted, and the species was removed from the candidate list. This removal was the result of new information regarding the amount of occupied habitat present throughout the species' range and a reevaluation of potential threats. Estimates from the 2004 finding were more accurate than those available during the earlier assessments and indicated nearly 3 times more occupied habitat was present than we originally believed. We concluded that the trends in the amount of occupied habitat did not support listing the species.
On February 7, 2007, Forest Guardians and others filed a complaint challenging the decision to remove the black-tailed prairie dog from the candidate list. On August 6, 2007, we received a formal petition dated August 1, 2007, from Forest Guardians (now WildEarth Guardians), Biodiversity Conservation Alliance, Center for Native Ecosystems, and Rocky Mountain Animal Defense, requesting that we list the black-tailed prairie dog throughout its historical range in Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming and in Canada and Mexico. The petitioners requested that, if the Service believes that
The petition clearly identified itself as a petition and included the requisite identification information as required in 50 CFR 424.14(a). We acknowledged receipt of the petition in a letter on August 24, 2007, and indicated that emergency listing of the black-tailed prairie dog was not warranted. We also explained that we would not be able to address their petition until fiscal year 2009, due to existing court orders and settlement agreements for other listing actions. However, in fiscal year 2008, funding became available, and we began work on this petition finding. The plaintiffs withdrew their February 7, 2007, complaint on October 9, 2007.
On March 13, 2008, WildEarth Guardians filed a complaint for failure to complete a 90–day finding on their August 1, 2007, petition. On July 1, 2008, a stipulated settlement and order was signed, in which we agreed to submit a 90–day finding to the
The black-tailed prairie dog is a member of the
The Utah and Mexican prairie dogs are currently listed as threatened (49 FR 22330, May 29, 1984) and endangered (35 FR 8491, June 2, 1970), respectively. The Gunnison's prairie dog is currently a candidate species within the montane portion of its range (73 FR 6660, February 5, 2008). The Service is considering whether listing is warranted for the white-tailed prairie dog through a formal status review which is due to be submitted to the
Research on the evolutionary divergence of the various taxa and populations of
We also investigated the petitioners' request that we list the subspecies
The black-tailed prairie dog is a burrowing, colonial mammal that is brown in color (Hoogland 2006a, pp. 8-9). Black-tailed prairie dogs are approximately 12 inches (in) (30 centimeters (cm)) in length and weigh 1 to 3 pounds (lbs) (500 to 1,500 grams (g)) (Hoogland 2006a, pp. 8-9). Key characteristics distinguish the black-tailed prairie dog from other prairie dog species:
(1) It has a longer (2 to 3 in (7-10 cm)) tail that is black-tipped;
(2) It is generally non-hibernating, except possibly in the northern and southern extremes of its range (Tuckwell and Everest 2009, p. 1; Truett
(3) It lives at lower elevations (2,300-7,200 feet (ft) (700-2,200 meters (m))) (Hoogland 2006a, pp. 8-9). Overlap of the geographic ranges of the five species is minimal; consequently, species usually can be identified by locality (Hall and Kelson 1959, p. 365; Hoogland 2006a, pp. 8-9).
The black-tailed prairie dog is typically found in level or gently sloping short- and mixed-grass rangeland, primarily east of the Rocky Mountains (Koford 1958, p. 8). The species is an herbivore, consuming short-grasses such as buffalograss (
Several biological factors determine the reproductive potential of the black-tailed prairie dog. Females live 4 to 5 years, usually do not breed until their second year, and produce a single litter with an average of three pups annually (Hoogland 2001, p. 917; Hoogland 2006b, p. 29). Therefore, one female may produce zero to 15 young in its lifetime. While the species is not prolific in comparison to many other rodents, it is capable of rapid population increases after population reductions (Collins
The colonial nature of prairie dogs, especially the black-tailed prairie dog, is a noteworthy characteristic of the species (Miller
Colonial behavior offers an advantageous defense mechanism by aiding in the detection of predators and by deterring predators through mobbing behavior (Hoogland 1995, pp. 3-6). Colonial behavior also increases reproductive success through cooperative rearing of juveniles and aids parasite removal via shared grooming (Hoogland 1995, pp. 3-6). However, colonial behavior can increase the disadvantageous transmission of disease (Olsen 1981, p. 236; Biggins and Kosoy 2001, p. 911; Antolin
An estimated 2.4 million ac (1 million hectares (ha)) of occupied habitat exists in a constantly shifting mosaic throughout an estimated 283 million ac (115 million ha) of suitable habitat that occurs across a range of approximately 440 million ac (178 million ha). Historically, unsuitable habitat included wetlands, lands with steep slopes, lands with shallow or sandy soils, and wooded areas. More recently, tilled croplands and urban areas have also been considered to be only marginally suitable. Black-tailed prairie dog colonies may expand or contract from year to year (Koford 1958, p. 12). Whether a colony expands or contracts depends on a combination of several factors such as climate, poisoning, disease, and shooting. Prairie dogs may also disperse over considerably long distances and establish new colonies. Dispersal distances up to 6 miles (mi) (10 kilometers (km)) over a period of a few weeks have been documented (Knowles 1985, p. 37). Dispersal can maintain genetic diversity or restore it following plague epizootics (Trudeau
The black-tailed prairie dog is considered a keystone species; that is, it is an indicator of diverse species composition within an ecosystem, and key to the persistence of that ecosystem (Kotliar
The historical range of the black-tailed prairie dog included portions of 11 States (Arizona, Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming), Canada, and Mexico (Hall and Kelson 1959, p. 365). This corresponds approximately with the Great Plains Physiographic Province, a zone of about 400 miles wide extending eastward from the Rocky Mountains. Approximately 395 million ac (160 million ha) of potential habitat are estimated to have existed across a range of approximately 440 million ac (178 million ha) (Black-footed Ferret Recovery Foundation (BFFRF) 1999, p. 4; Ernst 2008, p. 2). The species currently exists in the same 11 States, Canada, and Mexico, from extreme south-central Canada to northeastern Mexico and from approximately the 98
Most estimates of black-tailed prairie dog populations are based on estimates of the amount of occupied habitat (Facka
A more accurate large-scale estimate of occupied habitat can be derived by applying a correction factor for percent occupancy (the percent of habitat with burrows currently occupied by black-tailed prairie dogs) to an initial estimate. We can estimate percent occupancy via an on-site inspection of a portion of a survey area to confirm the presence of prairie dogs. This is particularly important in colonies that have been impacted by plague or poisoning. In these instances burrows remain but prairie dogs are absent. This unoccupied habitat should not be included in estimations of occupied habitat. We believe that occupied habitat is a reasonable measure to use in evaluating the persistence of the species inasmuch as comparisons involve millions of acres (hectares) and several-fold more millions of individual prairie dogs, whose numbers may fluctuate between and within years.
We have relied on the best available estimates of occupied habitat from States, land managers, researchers, or other sources to evaluate distribution, abundance, and trends of prairie dog populations. Recent trends of prairie dog populations are an appropriate surrogate for evaluating the status of the species.
Numerous estimates of black-tailed prairie dog occupied habitat are available, spanning a time period from 1903 to the present. In Table 1, we summarize historical estimates, estimates from a 1961 range wide survey, and the most recent available estimates. The 1961 estimates came from a Bureau of Sport Fisheries and Wildlife (BSFW) range wide survey that followed large-scale poisoning efforts and represent a low point in occupied habitat. Other estimates are from a variety of agencies and individuals as cited in Table 1. Additional estimates derived between 1961 and the most recent available estimates are also available in the Service's 2000 12–month finding and in the 2004 species assessment that removed the black-tailed prairie dog from the candidate list (Service 2000, p. 98; Service 2004, p. 7).
Some of these intermediate estimates are derived from field efforts, others are based on censuses by phone or mail, and the remainder are a result of desktop extrapolations. Desktop extrapolations used known estimates of occupied habitat that existed for portions of a state to derive a Statewide estimate for occupied habitat. These studies provide intermediate estimates of occupied habitat and additional information regarding trends.
Historical estimates of black-tailed prairie dog occupied habitat for a particular State are often quite variable. This is likely due to the imprecise survey methodologies used to derive early estimates. Additionally, some historical estimates were made after land conversion and poisoning had been initiated. If the average historical estimates (not including estimates from BFFRF 1999) in Table 1 for each State, Canada, and Mexico are summed, the range wide historical estimate of occupied habitat is approximately 104 million ac (42 million ha).
The Black-footed Ferret Recovery Foundation (BFFRF) (1999, p. 4) addressed this variability in historical estimates by evaluating U.S. Geological Survey land use and land cover data throughout the range of the black-tailed prairie dog. The BFFRF assumed that suitable land cover types such as grassland and agricultural land were potential habitat for the species historically. Other land cover types such as forests, rocky areas, wetlands, and lands with excessive slopes were not considered. Whicker and Detling (1988, p. 778) estimated that black-tailed
A reasonable range wide estimate of historically occupied habitat for the black-tailed prairie dog that considers all historical estimates from Table 1 is approximately 80 to104 million ac (32 to 42 million ha).
In 1961, the BSFW, a predecessor agency of the Service, tabulated habitat estimates on a county-by-county basis throughout the range of all prairie dog species in the United States (BSFW 1961, p. 1). These estimates were completed by District Agents for BSFW who were familiar with remaining extant prairie dog populations. The survey was completed in response to concerns from within the agency regarding possible adverse impacts to prairie dogs following large-scale poisoning (Oakes 2000, p. 167). These data provide an estimate for a single point in time when prairie dogs were reduced to very low numbers following a half century of intensive, coordinated government poisoning efforts.
The petitioners questioned the use of the BSFW (1961) survey due to its brevity and the fact that it represented an extreme low point in black-tailed prairie dog occupied habitat. However, this survey has been cited in other seminal documents, including Leopold (1964, p. 38) and Cain
The most recent Statewide estimates vary in survey date from 2002 to 2008 and include all black-tailed prairie dog occupied habitat known in a given State. The most current range wide estimate is approximately 2.4 million ac (1 million ha) including Canada and Mexico. Trends for occupied habitat in the United States appear to be increasing from the low point of 364,000 ac (147,000 ha) in 1961. Statewide trends for the same period (1961 – present) range from nearly stable in North Dakota to an approximately 19-fold increase in South Dakota. The status in Arizona is currently indeterminate due to the recent reintroduction.
We recognize that different methodologies were used at different times and in different locales for the various occupied habitat estimates. However, we believe that these estimates are the best available information and are comparable for the purpose of determining general population trends. Methods for determining occupied habitat have improved in recent years with the advent of tools such as aerial survey, satellite imagery, and Geographic Information Systems (GIS). Consequently, estimates that use these tools can be expected to be more accurate. Ground-truthing a percentage of the land surveyed to determine the percent of habitat occupied adds additional confidence to any large-scale estimate. States continue to refine their methodologies. A workshop is being planned in 2010 by the Western Association of Fish and Wildlife Agencies to further evaluate current survey methodologies for accuracy, statistical validity, cost, and other considerations. More detailed information regarding survey methodology, distribution, abundance, and trends for each State is provided as follows.
Survey methodology – The most recent survey by the Arizona Game and Fish Department in 2008 consisted of ground mapping, including ground-truthing (Van Pelt 2009, p. 41). The small amount of occupied habitat enabled a detailed survey effort with ground-truthing throughout and a high degree of confidence in the estimate.
Distribution – Historically, black-tailed prairie dog occupied habitat existed in extreme southeastern Arizona (Hall and Kelson 1959, p. 365). The species was extirpated from the State by approximately 1940 (Arizona Game and Fish Dept. 1988, p. 22). In October 2008, the species was reintroduced on Las Cienegas National Conservation Area (Voyles 2009, pp. 1-2).
Abundance – Historically approximately 650,000 ac (263,000 ha) (Van Pelt 1998, p. 1) to 1,396,000 ac (565,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Arizona. The most recent survey was conducted in 2008 (Van Pelt 2009, p. 41) and percent occupancy was 100 percent. The most recent estimate is 8 ac (3 ha) of occupied habitat, following an October 2008 reintroduction on Las Cienegas National Conservation Area (Koch 2009, p. 7). The next survey is scheduled for 2009 (Van Pelt 2009, p. 41).
Trends – Arizona contains approximately 1 percent of the potential habitat (Ernst 2008, p. 2) and less than 1 percent of currently occupied habitat in the United States. In 1961, no black-tailed prairie dog occupied habitat was found in Arizona (BSFW 1961, p. 1). Currently 8 ac (3 ha) are estimated to occur (Koch 2009, p. 7). The recent date of reintroduction does not allow for any interpretation of trends. However, reintroduction of the species after approximately 70 years of absence in the State is notable.
Survey methodology – The most recent survey by the Colorado Division of Wildlife (CDOW) in 2006 consisted of aerial line-intercept surveys. The observers in airplanes fly line-intercepts and record the flight path and length of lines flown above black-tailed prairie dog colonies, then estimate the cumulative area of colonies from the percentage of the flight path intercepted by prairie dog colonies. CDOW attempted to ground-truth 10 percent of recorded colony intercepts (dependent upon landowner permission) (Odell
Estimates derived from large-scale surveys, such as those conducted at a Statewide level, are not as accurate as smaller-scale, more intensive surveys that can include ground-truthing of 100 percent of the habitat. This level of effort is not feasible in large surveys. Nearly all States, including Colorado, dedicate considerable resources to conducting surveys and refining their methodologies, which contribute to improved estimates in future surveys. The CDOW added ground-truthing to their most recent survey, which further refined their estimate of black-tailed
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the eastern half of Colorado, east of the Front Range mountains (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations throughout at least 75 percent of the historical range (Van Pelt 2009, p. 14).
Abundance – Historically, approximately 3,000,000 ac (1,214,000 ha) (Clark 1989, p. 17) to 7,000,000 ac (2,833,000 ha) (Knowles 1998, p. 12) of black-tailed prairie dog occupied habitat existed in Colorado. CDOW completed the most recent survey in 2006 (Van Pelt 2009, p.14). Percent occupancy was 88 percent (Odell
Trends – Colorado contains approximately 8 percent of the potential habitat (Ernst 2008, p. 2) and approximately 33 percent of currently occupied habitat in the United States. In 1961, Colorado contained an estimated 96,000 ac (39,000 ha) of black-tailed prairie dog occupied habitat (BSFW 1961, p. 1). Currently, 788,657 ac (319,158 ha) of occupied habitat are estimated to occur in the state (Odell
Survey methodology – The Kansas Department of Wildlife and Parks conducted the most recent survey in 2006. It consisted of a combination of line transect (a survey along a straight path of standard width where the presence of appropriate habitat is recorded when observed) and interpretation of National Agriculture Imagery Program photographs (Van Pelt 2009, p. 15). No record of ground-truthing information was available. Because the State did not determine percent of habitat occupied, the estimate is less accurate than if they had ground-truthed a percentage of the lands surveyed and addressed percent occupancy. Nevertheless, the estimate is the most recent and best available information regarding the amount of black-tailed prairie dog habitat within the State.
Estimates of percent occupancy provided in 10 recent Statewide surveys range from 73-89 percent, with an average of 81 percent (EDAW 2000, p. 20; Sidle
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the western two-thirds of Kansas (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations throughout at least 75 percent of the historical range (Van Pelt 2009, p. 16).
Abundance – Historically, approximately 2,000,000 ac (809,000 ha) (Lantz 1903, p. 150) to 7,503,000 ac (3,036,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Kansas. The Kansas Department of Wildlife and Parks completed the most recent survey in 2006 (Van Pelt 2009); it did not note percent occupancy. The most recent estimate is 173,593 ac (70,251 ha) (Van Pelt 2009, p. 15). The next survey is scheduled for 2009 (Van Pelt 2009, p. 15).
Trends – Kansas contains approximately 10 percent of the potential habitat (Ernst 2008, p. 2) and approximately 7 percent of currently occupied habitat in the United States. In 1961, 50,000 ac (20,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in Kansas (BSFW 1961, p. 1). Currently 173,593 ac (70,251 ha) of occupied habitat are estimated to occur (Koch 2009, p. 7). This area represents an apparent three-fold increase since 1961.
Survey methodology – The most recent survey conducted by the Montana Department of Fish, Wildlife and Parks in 2008 consisted of an aerial line intercept survey, patterned after Sidle
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the eastern two-thirds of Montana, with the exception of the northeastern corner of the State (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations throughout over 90 percent of the historical range (Van Pelt 2009, p. 20).
Abundance – Historically, approximately 1,471,000 ac (595,000 ha) (Flath and Clark 1986, p. 67) to 10,667,000 ac (4,317,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Montana. The most recent survey was completed by the Montana Department of Fish, Wildlife and Parks in 2008 (Van Pelt 2009, p. 19). The percent of habitat occupied was 85 percent (Hanauska-Brown 2009, p. 1). Adjusted to account for 85 percent occupancy, the most recent estimate of occupied habitat is 193,862 ac (78,453 ha) (Hanauska-Brown 2009, p. 1). The next survey is scheduled for 2011.
Trends – Montana contains approximately 12 percent of the potential habitat (Ernst 2008, p. 2) and approximately 8 percent of currently occupied habitat in the United States. In 1961, an estimated 28,000 ac (11,000 ha) of black-tailed prairie dog occupied habitat occurred in Montana (BSFW 1961, p. 1). Currently, 193,862 ac (78,453 ha) of occupied habitat are estimated to occur (Hanauska-Brown 2009, p. 1). This area represents nearly a seven-fold increase since 1961.
Survey methodology – The Nebraska Game and Parks Commission conducted the most recent survey in 2003, consisting of an aerial line intercept survey by county using variably spaced transects based on the estimated number of occupied acres in each county, with more transects in the more densely populated counties (Bischof
Distribution – Historically, black-tailed prairie dog occupied habitat existed throughout most of Nebraska west of the 97
Abundance – Historically, approximately 6,000,000 ac (2,428,000 ha) (Knowles 1998, p. 12) to 9,021,000 ac (3,651,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Nebraska. The most recent survey was completed by the Nebraska Game and Parks Commission in 2003 (Amack and Ibach 2009, p. 1). The percent of habitat occupied was 74 percent (Bischoff
Trends – Nebraska contains approximately 11 percent of the potential habitat (Ernst 2008, p. 2) and approximately 6 percent of currently occupied habitat in the United States. In 1961, 30,000 ac (12,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in Nebraska (BSFW 1961, p. 1). Currently, 136,991 ac (55,438 ha) of occupied habitat are estimated to occur (Amack and Ibach 2009, p. 1). This area represents nearly a five-fold increase since 1961.
Survey methodology – New Mexico Department of Game and Fish conducted the most recent survey in 2003, which consisted of examination of digital orthophoto quadrangle imagery, followed by an effort to ground-truth 15 percent of recorded colonies (dependent upon landowner permission) (Johnson
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the eastern and southwestern two-thirds of the State (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations in 54 percent of the counties that had historical records (Van Pelt 2009, p. 28).
Abundance – Historically, approximately 6,640,000 ac (2,687,000 ha) (Bailey 1932, pp. 14 and 16) to 8,950,000 ac (3,622,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in New Mexico. The most recent survey was completed by the New Mexico Department of Game and Fish in 2003 (Johnson
Trends – New Mexico contains approximately 12 percent of the potential habitat (Ernst 2008, p. 2) and approximately 2 percent of currently occupied habitat in the United States. In 1961, 17,000 ac (7,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in New Mexico (BSFW 1961, p. 1). Currently, 40,000 ac (16,187 ha) of occupied habitat are estimated to occur (Johnson
Survey methodology – The most recent survey conducted by the North Dakota Game and Fish Department in 2006 consisted of aerial surveys, followed by an effort to ground-truth all active colonies that they were able to get landowner permission to visit and then map colonies using GPS (Knowles 2007, p. 3).
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the southwestern third of North Dakota, west of the Missouri River (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations in 79 percent of counties that historically contained prairie dogs (Van Pelt 2009, p. 24).
Abundance – Historically, approximately 2,000,000 ac (809,000 ha) (Knowles 1998, p. 12) to 2,201,000 ac (891,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in North Dakota. The most recent survey was completed by the North Dakota Game and Fish Department in 2006 (Knowles 2007, p. 1). 89 percent of acres were occupied (Knowles 2007, p. 2). Adjusted to account for 89 percent occupancy, the most recent estimate of occupied habitat is 22,597 ac (9,145 ha) (Knowles 2007, p. 1). The next survey is scheduled for 2010 (Van Pelt 2009, p. 24).
Trends – North Dakota contains approximately 3 percent of the potential habitat (Ernst 2008, p. 2) and approximately 1 percent of currently occupied habitat in the United States. In 1961, 20,000 ac (8,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in North Dakota (BSFW 1961, p. 1). Currently, 22,597 ac (9,145 ha) of occupied habitat are estimated to occur (Knowles 2007, p. 7). Occupied habitat has apparently remained relatively stable since 1961.
Survey methodology – The Oklahoma Department of Wildlife Conservation conducted the most recent survey in 2002, which consisted of interpretation of aerial maps and on-site ground-truthing with input from county game wardens (Van Pelt 2009, p. 30).
Distribution – Historically, black-tailed prairie dog occupied habitat existed throughout approximately the western two-thirds of Oklahoma west of the 97
Abundance – Historically, approximately 950,000 ac (384,000 ha) (Knowles 1998, p. 12) to 4,625,000 ac (1,872,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Oklahoma. Ground-truthing was conducted in the most recent survey completed by the Oklahoma Department of Wildlife Conservation in 2002 (Van Pelt 2009, p. 30), however the percent of habitat occupied was not noted (Van Pelt 2009). The most recent estimate of occupied habitat is 57,677 ac (23,341 ha) (Koch 2009, p. 7) based upon the 2002 survey (Van Pelt 2009, p. 30). The next survey is scheduled for 2008 through 2009 (Van Pelt 2009, p. 30). We have not yet received any survey results.
Trends – Oklahoma contains approximately 6 percent of the potential habitat (Ernst 2008, p. 2) and approximately 2 percent of currently occupied habitat in the United States. In 1961, 15,000 ac (6,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in Oklahoma (BSFW 1961, p. 1). Currently, 57,677 ac (23,341 ha) of occupied habitat are estimated to occur (Koch 2009, p. 7). This area represents a nearly four-fold increase since 1961.
Survey methodology – The South Dakota Department of Game, Fish, and Parks conducted the most recent survey conducted in 2009 which consisted of interpretation of aerial photographs (Kempema
Distribution – Historically, black-tailed prairie dog occupied habitat existed throughout the western three-fourths of the State (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant
Abundance – Historically, approximately 1,757,000 ac (711,000 ha) (Linder
Trends – South Dakota contains approximately 9 percent of the potential habitat (Ernst 2008, p. 2) and approximately 26 percent of currently occupied habitat in the United States. In 1961, 33,000 ac (13,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in South Dakota (BSFW 1961, p. 1). Currently, 630,849 ac (255,296 ha) of occupied habitat are estimated to occur (Kempema
Survey methodology – The Texas Parks and Wildlife Department in 2006 conducted the most recent survey which consisted of interpretation of Digital Orthoimagery Quarter Quadrangles (DOQQs) and ground-truthing (Van Pelt 2009, p. 37). The proportion of habitat that was ground-truthed was not noted.
Distribution – Historically, black-tailed prairie dog occupied habitat existed throughout approximately the northwestern one-third of Texas (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations throughout 75 percent of the historical range (Van Pelt 2009, p. 38).
Abundance – Historically, approximately 57,600,000 ac (23,310,000 ha) (Bailey 1905, p. 90) to 16,703,000 ac (6,759,000 ha) (BFFRF 1999, p. 4) of black-tailed prairie dog occupied habitat existed in Texas. The Texas Parks and Wildlife Department completed the most recent survey in 2006 (Van Pelt 2009, p. 37). Percent occupancy was not noted. The most recent estimate of occupied habitat is 115,000 ac (46,539 ha) based upon the 2006 survey (Koch 2009, p. 7). The next survey is scheduled for 2010 (Van Pelt 2009, p. 37).
Trends – Texas contains approximately 21 percent of the potential habitat (Ernst 2008, p. 2) and approximately 5 percent of currently occupied habitat in the United States. In 1961, 26,000 ac (11,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in Texas (BSFW 1961, p. 1). Currently, 115,000 ac (46,539 ha) of occupied habitat are estimated to occur (Koch 2009, p. 7). This area represents an apparent four-fold increase since 1961.
Survey methodology – The Wyoming Game and Fish Department conducted the most recent survey in 2006 which consisted of delineation of colony boundaries from interpretation of DOQQs, followed by aerial survey to confirm status (Grenier
Distribution – Historically, black-tailed prairie dog occupied habitat existed in the eastern half of Wyoming, east of the Rocky Mountains (Hall and Kelson 1959, p. 365). Currently, distribution appears to be scattered in remnant populations throughout at least 75 percent of the historical range (Van Pelt 2009, p. 40).
Abundance – Historically, approximately 5,786,000 ac (2,342,000 ha) (BFFRF 1999, p. 4) to 16,000,000 ac (6,475,000 ha) (Knowles 1998, p. 12) of black-tailed prairie dog occupied habitat existed in Wyoming. The most recent survey was completed by the Wyoming Game and Fish Department in 2006 (Emmerich 2009, p. 2). Occupied habitat was categorized as healthy (87 percent) or impacted (13 percent) (Grenier
Trends – Wyoming contains approximately 6 percent of the potential habitat (Ernst 2008, p. 2) and nearly 10 percent of currently occupied habitat in the United States. In 1961, 49,000 ac (20,000 ha) of black-tailed prairie dog occupied habitat were estimated to occur in Wyoming (BSFW 1961, p. 1). Currently, 229,607 ac (92,919 ha) of occupied habitat are estimated to occur (Grenier
Survey methodology – The most recent survey was described as mapping with GPS (Koch 2009, p. 7). We do not have more detailed information concerning the methods used, including whether data was ground-truthed or corrected for occupancy.
Distribution – Historically, black-tailed prairie dog occupied habitat existed in southernmost Saskatchewan (Hall and Kelson 1959, p. 365). Currently, distribution is limited to remnant populations within the same range, primarily in Grasslands National Park (Tuckwell and Everest 2009, p. 2).
Abundance – Historically, approximately 2,000 ac (809 ha) of black-tailed prairie dog occupied habitat existed in Canada (Knowles 1998, p. 12). Surveys are conducted every other year (Tuckwell and Everest 2009, p. 16). The most recent survey was completed in 2007 (Van Pelt 2009, p. 64). Percent occupancy was not noted. The most recent estimate of occupied habitat is 4,485 ac (1,815 ha) based upon the 2007 survey (Koch 2009, p. 3).
Trends – Canada represents the periphery of the black-tailed prairie dog's range and habitat has always been limited, but the amount of occupied habitat appears stable (Tuckwell and Everest 2009, p. 2).
Survey methodology – Recent survey techniques and extent of ground-truthing efforts was not reported.
Distribution – Historically, black-tailed prairie dog occupied habitat existed throughout the northern portion of the Mexican States of Chihuahua and Sonora (Hall and Kelson 1959, p. 365). Currently, distribution appears limited to remnant populations in a small area of northern Chihuahua (List 1997, p. 141).
Abundance – Historically, approximately 1,384,000 ac (560,000 ha) of black-tailed prairie dog occupied habitat existed in Mexico (Ceballos
Trends – Mexico experienced a prolonged drought in recent years, which resulted in dramatic loss of vegetation, followed by a reduction in black-tailed prairie dog occupied habitat (Larson 2008, p. 87). The most recent estimate is 36,561 ac (14,796 ha) of occupied habitat in 2006 (Koch 2009, p. 3). Occupied habitat appears to be declining in recent years.
We have considered all scientific and commercial information available in our files, including pertinent information received during this status review. We relied primarily on published, peer-
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations (50 CFR 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors: (A) present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or education purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
We addressed the potential threats discussed in the petition under the most appropriate factor; however, we recognize that several potential threats might be considered under more than one factor. For example, poisoning can affect habitat (Factor A), and can be affected by state and Federal regulatory mechanisms (Factor D), but is primarily addressed in this finding under other factors (Factor E). In making this finding, information pertaining to the black-tailed prairie dog , in relation to the five factors provided in section 4(a)(1) of the Act is discussed below.
Some black-tailed prairie dog habitat has been destroyed, modified, or curtailed by:
(1) conversion of native prairie habitat to cropland;
(2) urbanization;
(3) oil, gas, and mineral extraction;
(4) habitat loss caused by loss of prairie dogs; and
(5) livestock grazing, fire suppression, and weeds.
In some instances, black-tailed prairie dog habitat continues to be impacted by these same stressors. The Black-tailed Prairie Dog Conservation Team developed conservation plans that address issues of habitat loss. Each is discussed below.
The present or threatened destruction of habitat due to cropland development affects portions of the black-tailed prairie dog's range. Regular cultivation precludes burrow development by the species. This practice is the most substantial cause of habitat destruction that we are able to quantify. Conversion of native prairie to cropland has largely progressed across the species' range from east to west. The most intensive agricultural use is in the eastern portion of the black-tailed prairie dog's range, in portions of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas, where higher rainfall amounts and generally better soils result in greater agricultural production. Land with the highest potential for traditional farming uses was converted many years ago. Consequently, the present and future destruction of habitat through cropland conversion is likely much less than in the early days of agricultural development in the Great Plains.
A detailed assessment using the National Land Cover Dataset determined that there are approximately 110 million ac (45 million ha) of cropland and 283 million ac (115 million ha) of rangeland within the species' range at present (Ernst 2008, pp. 10-19). When the 2.4 million ac (1 million ha) of currently occupied habitat is contrasted with the 283 million ac (115 million ha) of rangeland, it appears that sufficient potential habitat still occurs within the range of the species in the United States to accommodate large expansions of prairie dog populations. These areas could be colonized over time by expansion of existing colonies if the landowners and public sentiment allows.
In recent years, ethanol production from corn has expanded in the United States (Westcott 2007, p. 1). However, most corn is cultivated east of the range of the black-tailed prairie dog (Westcott 2007, p. 3). Additionally, the increase in corn production largely occurs by adjusting crop rotations between corn and soybeans (Westcott 2007, p. 7). We do not anticipate that increased ethanol production will result in a substantial loss in the species' occupied or potential habitat.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, suggests that the present or threatened destruction of habitat due to cropland development is not a limiting factor for the species.
The present or threatened destruction of habitat due to urbanization affects portions of the black-tailed prairie dog's range, particularly east of the Front Range in Colorado. However, in a Statewide or range wide context, loss of habitat due to urbanization is not substantial. In Colorado, approximately 502,000 ac (203,000 ha) of urban lands and 21.6 million ac (8.8 million ha) of rangeland occur within the species' range (Ernst 2008, pp. 10-11). This equates to approximately 2 percent of potential habitat lost to urbanization in Colorado. Throughout the United States, approximately 2.4 million ac (1 million ha) of urban lands occur within the species' historic range (Ernst 2008, pp. 10-18), while approximately 283 million ac (115 million ha) of rangeland exist within the species' range. This equates to less than 1 percent of potential habitat lost to urbanization in the United States. A very small percentage of potential prairie dog habitat has been lost to urbanization. As a consequence, it appears that sufficient potential habitat still occurs within the range of the species, including Colorado, to accommodate existing or large expansions of prairie dog populations, even if some local prairie dog populations may be lost to urbanization in the future.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that the present or threatened destruction of habitat due to urbanization is not a limiting factor for the species.
The present or threatened curtailment of habitat due to oil, gas, and mineral extraction may affect portions of black-tailed prairie dog occupied habitat; however, we have no information that quantifies these impacts. Qualitative information was submitted on behalf of the Petroleum Association of Wyoming, the Public Lands Advocacy, the Montana Petroleum Association, the New Mexico Oil and Gas Association, Oklahoma Independent Petroleum Association, and the Independent Petroleum Association of Mountain States. Mapping in colonies within oil and gas development areas in Wyoming indicates increased prairie dog occupancy in these areas (Sorensen
The present or threatened modification of habitat due to the extirpation of black-tailed prairie dogs may affect portions of the species' range. The petitioners theorized that the loss of prairie dogs from their habitats may create a negative feedback loop, resulting in their habitat becoming less suitable. Documentation of the species' effects on habitat is mixed. In some instances, prairie dogs may have a positive effect on habitat (Koford 1958, pp. 43–62; Kotliar
The present or threatened modification of habitat due to livestock grazing, fire suppression, and weeds may affect portions of the black-tailed prairie dog's range. Nonnative plant species may increase as a result of overgrazing and in the absence of fire, may modify the habitat. However, the impact of plant composition on habitat suitability for prairie dogs is contradictory. Some studies suggest that prairie dogs cause deterioration in forage quality, while others contend that livestock grazing causes a deterioration in forage quality (Koford 1958, pp. 43–62; Uresk
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that the present or threatened modification of habitat due to livestock grazing, fire suppression, or weeds is not a limiting factor for the species.
Following the 1998 petitions to list the black-tailed prairie dog, a group of representatives from each State within the historical range of the species formed the Black-tailed Prairie Dog Conservation Team. The team intended to reduce threats to the species and increase the amount of habitat occupied by the species. The Team developed “The Black-tailed Prairie Dog Conservation Assessment and Strategy” (Van Pelt 1999), which initiated development of “A Multi-State Conservation Plan for the Black-tailed Prairie Dog,
The purpose of the Multi-State Plan was to provide adaptive management goals for future prairie dog management within the 11 States. The Multi-State Plan identified the following minimum 10–year target objectives:
(1) maintain at least the currently occupied acreage of black-tailed prairie dog habitat in the United States;
(2) increase occupied habitat to at least 1,693,695 ac (685,414 ha) in the United States by 2011;
(3) maintain at least the current occupied acreage in the two complexes greater than 5,000 ac (2,023 ha) that then occurred on and adjacent to Conata Basin–Buffalo Gap National Grassland, South Dakota, and Thunder Basin National Grassland, Wyoming;
(4) develop and maintain a minimum of 9 additional complexes greater than 5,000 ac (2,023 ha), with each State managing or contributing to at least one complex greater than 5,000 ac (2,023 ha) by 2011;
(5) maintain at least 10 percent of total occupied acreage in colonies or complexes greater than 1,000 ac (405 ha) by 2011; and
(6) maintain distribution over at least 75 percent of the counties in the historical range, or at least 75 percent of the historical geographic distribution.
Objectives 1, 2, and 3 have been achieved. Objectives 4, 5, and 6 have not yet been demonstrated in all States. The progress of individual states in achieving these objectives is described in more detail under Factor D.
The States also agreed to draft Statewide management plans for the black-tailed prairie dog. The States approve their own Statewide management plans. Colorado and Wyoming have finalized grassland conservation plans that support and meet the objectives of the Multi-State Plan. South Dakota has a finalized management plan that supports and meets the Multi-State Plan's objectives, but reserves the right to preserve its own management authority and identify its own goals and objectives. Kansas, Oklahoma, and Texas have finalized management plans that support the Multi-State Plan objectives, but have not yet met all of those objectives. Montana, New Mexico, and North Dakota have finalized management plans that do not support or meet all of the objectives of the Multi-State Plan. Arizona has a draft plan that supports the Multi-State Plan's objectives, but their Wildlife Commission did not approve it. Nevertheless, Arizona continues to work toward the Multi-State Plan's objectives. Nebraska has a draft plan that supports the Multi-State Plan objectives, but it its Wildlife Commission did not approve it. In Nebraska, work toward the Multi-State Plan's objectives has been halted.
As a result of the development of the Multi-State and Statewide management plans, state wildlife agencies are surveying and monitoring black-tailed prairie dogs on a more regular basis. These efforts will enable the States to monitor the status of the black-tailed prairie dog and the progress of the conservation programs.
Cropland conversion, urbanization, energy development, conversion to scrubland in the absence of prairie dogs, and invasion of non-native species all occur within the historical range of the black-tailed prairie dog, and will likely
We conclude that the best scientific and commercial information available indicates that the black-tailed prairie dog is not now, or in the foreseeable future, threatened by the present or threatened destruction, modification, or curtailment of its habitat or range to the extent that listing under the Act as a threatened or endangered species is warranted at this time. Abundant suitable habitat in the form of rangeland exists and is not a limiting factor for the species. The present or threatened modification of prairie dog habitat presented by sylvatic plague is addressed under Factor C, and the present or threatened curtailment of prairie dog habitat presented by poisoning is addressed under Factor E.
Recreational shooting of black-tailed prairie dogs can reduce population densities, cause behavioral changes, diminish reproduction and body condition, increase emigration, and cause extirpation in isolated circumstances (Stockrahm 1979, pp. 80–84; Knowles 1988, p. 54; Vosburgh 1996, pp. 13, 15, 16, and 18; Vosburgh and Irby 1998, pp. 366–371; Pauli 2005, p. 1; Reeve and Vosburgh 2006, p. 144). This may be due to the colonial nature of prairie dogs, their sensitivity to social disruption, and the intense nature of some recreational shooting. However, available information from several of the same studies indicates that populations can also often recover from very low numbers following intensive shooting (Knowles 1988, p. 54; Vosburgh 1996, pp. 16, 31; Dullum
Pauli (2005) studied five colonies not exposed to shooting and compared population effects with five colonies where shooting occurred. He found that in the colonies with shooting, reproductive output decreased by 76 percent from 2003-2004 on the shot colonies (Pauli 2005, p. 29). However, all colonies but one expanded from 2003-2004, although expansion was greater in control colonies (49.6 percent) than in colonies where shooting occurred (25.0 percent) (Pauli 2005, p. 17). The colony that did not expand was a control colony that experienced plague (Pauli
Recreational shooting may increase the potential for lead poisoning in predators and scavengers consuming shot prairie dogs (Reeve and Vosburgh 2006, p. 154). This risk may extend to prairie dogs, which have occasionally been observed to cannibalize carcasses (Hoogland 1995, p. 14). Recreational shooters primarily use bullets designed to expand on impact and rarely remove carcasses. In one study, expanding bullets left an average of 3.426 grains (228.4 milligrams (mg)) of lead in a prairie dog carcass, while non-expanding bullets averaged 0.297 grains (19.8 mg) of lead (Pauli and Buskirk 2007b, p.103). The authors noted that the amount of lead in a single prairie dog carcass shot with an expanding bullet is potentially sufficient to acutely poison scavengers or predators, and may provide an important portal for lead entering wildlife food chains. A wide range of sublethal toxic effects are also possible from smaller quantities of lead (Pauli and Buskirk 2007, p.103).
Black-tailed prairie dogs are occasionally collected for the pet trade, plague research, and zoo displays. However, we have no information indicating any adverse effects resulting from possible overutilization for commercial (pet trade), scientific (plague research), or educational (zoo displays) purposes.
Recreational shooting of prairie dogs can cause localized effects on a population. However, literature documenting effects from shooting of prairie dogs also frequently describes subsequent rebounds in local populations. Extirpations due to recreational shooting, while documented, are rare and therefore not considered a significant threat overall to the species. Recent Statewide estimates of occupied habitat further reinforce this observation by documenting population increases in States that allow shooting. There is no information available to indicate that the type of bullet used to shoot prairie dogs poses a substantial risk of lead poisoning to surviving prairie dogs due to scavenging carcasses. However, the risk to other species that may scavenge prairie dog carcasses should be a management consideration if intensive recreational shooting occurs. Since the early 1960s, occupied habitat has increased in every State. Throughout the United States, occupied habitat is estimated to have increased by over 600 percent from 1961 until the present time. This increase has occurred despite recreational shooting and impacts from other factors.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that recreational shooting is not a limiting factor for the species. Consequently, we do not anticipate that impacts from recreational shooting are likely to negatively impact the status of the species in the foreseeable future.
We conclude that the best scientific and commercial information available indicates that the black-tailed prairie dog is not now, or in the foreseeable future, threatened by overutilization for commercial, recreational, scientific, or educational purposes to the extent that listing under the Act as a threatened or
Plague is an exotic disease foreign to the evolutionary history of North American prairie dogs. It is caused by the bacterium
Plague is maintained in nature through fleas and certain rodent hosts that have sufficient resistance to maintain the disease at a low level of transmission with little evident mortality in animals carrying plague (enzootic cycle). Occasionally, the disease spreads from enzootic hosts to more susceptible animals, resulting in a rapidly spreading die-off affecting a large number of animals (epizootic cycle) (Barnes 1993, p. 29; Biggins and Kosoy 2001, p. 909; Cully and Williams 2001, p. 900; Gage and Kosoy 2005, pp. 506-508). The factors that cause a change from an enzootic to epizootic cycle are still being researched, but may include host density, flea density, and climatic conditions (Cully 1989, p. 49; Parmenter
Black-tailed prairie dogs are very sensitive to plague, and mortality frequently reaches 100 percent (Barnes 1993, p. 28). Two patterns of die-offs are typically described for black-tailed prairie dogs: (1) A rapid and nearly 100 percent die-off with incomplete recovery, such as has occurred at the Rocky Mountain Arsenal and the Comanche National Grassland in Colorado (Cully and Williams 2001, pp. 899–903); and (2) a partial die-off resulting in smaller, but stable, populations and smaller, more dispersed colonies, such as has occurred at the Cimarron National Grassland in Kansas (Cully and Williams 2001, pp. 899–903) and Pawnee National Grassland in Colorado (Derner
Several reports have suggested that the response of black-tailed prairie dogs to plague may vary based on population density or degree of colony isolation (Cully 1989, p. 49; Cully and Williams 2001, pp. 899–903; Lomolino
Table 2 illustrates die-offs and extent of recovery for several well-studied sites that have experienced plague epizootics (outbreak), although some of these sites may have also been influenced by poisoning. Any conclusions as to decreasing or increasing trends in black-tailed prairie dog populations described in Table 2 are temporal in nature and site-specific. Long-term, large-scale population trends appear to be increasing.
Some studies have documented the development of antibodies in black-tailed prairie dogs surviving a plague epizootic. Over 50 percent of survivors developed antibodies at one Colorado site (Pauli 2005, pp. 1, 71). The degree of evolved resistance, assuming little or no resistance initially, is not known. However, a preliminary assessment of natural resistance to plague found that prairie dogs collected from South Dakota (minimal plague), Texas (historical plague outbreaks), and Colorado (ongoing plague outbreaks) had differing levels of resistance. When challenged with the same doses of plague inoculum, nearly all South Dakota animals died, but 60 percent and 50 percent of animals from Texas and Colorado respectively survived over all doses (Rocke 2009, p. 1). Laboratory research indicates that at low levels of exposure a small percentage of black-tailed prairie dogs show some immune response and consequently some resistance to plague, indicating that development of a plague vaccine may be feasible (Creekmore
Since our last evaluation of the status of the black-tailed prairie dog in 2004, when it was removed from the candidate list, plague has expanded its range into South Dakota, previously the only State where plague had not been documented in prairie dogs (U.S. Fish & Wildlife Service 2005a, p. 1). The disease reached Conata Basin in 2008, despite 3 years of treating prairie dog burrows in portions of the affected area with insecticide in an effort to kill fleas and thereby limit plague transmission (a process referred to as “dusting”).
Conata Basin is one of the largest remaining black-tailed prairie dog complexes and is the most successful recovery site in North America for the endangered black-footed ferret. Approximately 10,505 ac (4,251 ha) have been affected by plague through May 2009 in Conata Basin (Griebel 2009, p. 1). Within the plague zone, there are typically scattered individuals or small pockets of 1 to 2 ac (0.4 to 0.8 ha) where prairie dogs either have natural immunity or escaped exposure by chance (Griebel 2008, p. 4).
Plague has also been documented on Pine Ridge and Cheyenne River Reservations in South Dakota (Mann-Klager 2008, pp. 1-2). Creekmore
Sylvatic plague remains a significant population stressor and the spread and effects of plague on the species could be exacerbated by climate change in the future. The extent to which the spread of plague may expand or contract in the future is not clear. Regardless of how plague is affected by climate change, the black-tailed prairie dog has proven to be
Tularemia and monkey pox are diseases that have had impacts on captive black-tailed prairie dogs associated with the pet trade; however, we have no information to indicate that either of these diseases are a concern for wild prairie dogs.
Many species prey upon the black-tailed prairie dog; however, we have no information to indicate that predation is a concern.
Plague has expanded its range to all States within the range of the black-tailed prairie dog in recent years and has caused local population declines at several sites. These declines are typically followed by partial or complete recovery. Development of a vaccine to protect prairie dog populations has begun, and resistance to plague has been observed in some individuals. Since the early 1960s, occupied habitat has increased in every State, even in those States where plague has been present for over 50 years. Throughout the United States, occupied habitat is estimated to have increased by over 600 percent from 1961 until the present time. This increase has occurred despite continued impacts from plague and other factors.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that plague is not a limiting factor for the species. Although Sylvatic plague remains a population stressor and the spread and effects of plague on the species could be exacerbated by climate change in the long term future, the black-tailed prairie dog has proven to be a resilient species. In spite of the past and current effects of plague and climate change and resulting impacts on the species, black-tailed prairie dog occupied habitat (a surrogate measure for population trends and status) in the U.S. has increased by more than 600 percent since the early 1960s. Although the effects of plague could be exacerbated by climate change in the future, the current status of the black-tailed prairie dog does not suggest that the combined effects of climate change and plague, are a limiting factor for the species in the foreseeable future, and we do not believe these will result in significant population-level impacts. Consequently, we do not anticipate that impacts from the disease are likely to negatively impact the status of the species in the foreseeable future. Therefore, we have no reason to suspect that plague poses a significant threat to the species.
We conclude that the best scientific and commercial information available indicates that the black-tailed prairie dog is not now, or in the foreseeable future, threatened by disease or predation to the extent that listing under the Act as a threatened or endangered species is warranted at this time.
Traditionally, resident species that are not federally threatened or endangered are usually managed by States or Tribes. Federal land management agencies may have additional management policies on their lands. The three primary means by which agencies can effectively influence black-tailed prairie dog populations are via shooting regulations, poisoning regulations, and proactive management. Detailed information regarding existing regulatory and management measures affecting the species is provided below.
Classification – The species is classified as nongame (animals that are not traditionally hunted, fished, or trapped) (Voyles 2009, p. 2).
Shooting – A hunting license is required to shoot prairie dogs. The hunting season for black-tailed prairie dogs has been closed since 1999 (Voyles 2009, p. 2).
Poisoning – Toxicants are permitted for use on prairie dogs in Arizona, typically in conjunction with human health related to plague or safety concerns; however, plague has not been identified within the range of the black-tailed prairie dog in Arizona since its reintroduction in 2008, and no poisoning has occurred (Voyles 2009, p. 2).
Management Plans – Arizona is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (Van Pelt
Classification – The black-tailed prairie dog is classified as small game (CDOW 2009, p. 2).
Shooting – In 2006, the State removed the ban on hunting black-tailed prairie dogs on public land (Nesler 2009, p. 5). The hunting season is year-round on private land and June 15 through the end of February on public land. A small game license is required. There is no bag limit (CDOW 2009, p. 2).
Poisoning – Chemical control is jointly regulated by the Colorado Department of Agriculture, and the CDOW and is limited to those pesticides legally permitted for use on black-tailed prairie dogs. Prairie dogs may also be taken by use of explosive gases where necessary to control damage on private lands (CDOW 2009, p. 4).
Management Plans – Colorado is not a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (CDOW 2003) for Colorado supports and meets all of the objectives described in the Multi-State Plan. The Statewide management plan for Colorado has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (CDOW 2006, p. 98). However, this designation does not result in any protection for the species.
Classification – The Kansas Department of Wildlife and Parks classifies the species as wildlife (Kansas Department of Wildlife and Parks 2009, p. 1).
Shooting – The hunting season is year-round on private and public lands. A hunting license is required for residents and nonresidents. There is no bag limit (Kansas Department of Wildlife and Parks 2009, p. 2).
Poisoning – The most recent information available to us indicates that a permit is required to use any poisonous gas or smoke, but is not required to use above ground toxicants (Mitchener 2003, p. 2). According to Kansas Statutes 80-1201, 1202, and
Management Plans – Kansas is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (Kansas Department of Wildlife and Parks 2002) for Kansas supports, but does not meet, all of the objectives described in the Multi-State Plan. Kansas does not meet the objective of maintaining at least 10 percent of total occupied area in complexes greater than 1,000 ac (405 ha) (Van Pelt 2009, p. 16). The Statewide management plan for Kansas has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (Wasson
Classification – The species is classified as a vertebrate pest under the Montana Department of Agriculture (Bamber 2009, pp. 1-2). The State legislature allowed the dual status of “nongame wildlife in need of management” and “vertebrate pest” to expire in 2007 (Bamber 2009, pp. 1-2). A bill to resume dual classification and management of the black-tailed prairie dog failed to pass in the 2009 Montana legislative session (Hanauska-Brown 2009, p. 2).
Shooting – The hunting season is year-round on private and public lands. No hunting license is required for residents or nonresidents (Van Pelt 2009, p. 21). There is no bag limit.
Poisoning – Chemical control is regulated by the Montana Department of Agriculture. The Department employs a vertebrate pest specialist to assist Federal, State, and County agencies and private landowners with training and certification of pesticide applicators. There is no funding or personnel for the Montana Department of Agriculture to conduct prairie dog control programs. No control is currently occurring on Federal or tribal lands, and the level of control on private and State lands has remained stable in recent years (Bamber 2009, pp. 1-2).
Management Plans – Montana is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (Montana Department of Fish, Wildlife and Parks 2002) for Montana does not support or meet the occupied area objective. The Statewide management plan for Montana has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (Montana Fish, Wildlife and Parks 2005, pp. 375-378). However, this designation does not result in any protection for the species.
Classification – The species is classified as unprotected nongame (Amack and Ibach 2009, p. 2).
Shooting – The hunting season is year-round on private and public lands. No hunting license is required for residents. Nonresidents must have a small game hunting license. There is no bag limit (Amack and Ibach 2009, p. 2).
Poisoning – Chemical control is regulated by the Nebraska Department of Agriculture and is limited to those pesticides legally permitted for use on black-tailed prairie dogs. The U. S. Animal and Plant Health Inspection Service and landowners conduct control work (Amack and Ibach 2009, p. 3).
Management Plans – Nebraska is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (Nebraska Game and Parks Commission 2001) for Nebraska supports, but does not meet, all of the objectives described in the Multi-State Plan. Nebraska does not meet the objective of managing or contributing to at least one complex greater than 5,000 ac (2,023 ha) and does not meet the objective of maintaining distribution throughout at least 75 percent of the historic range in the State (Van Pelt 2009, p. 26). The Statewide management plan for Nebraska has not been approved. The Statewide comprehensive wildlife strategy does not recognize the black-tailed prairie dog as a species of concern (Schneider
Classification – The species is not classified as having any status by the State other than that described by the Statewide comprehensive wildlife strategy (Van Pelt 2009, p. 28).
Shooting – The hunting season is year-round on private and public lands. No hunting license is required for residents. Nonresidents must have a hunting license (Van Pelt 2009, p. 28). There is no bag limit.
Poisoning – Chemical control is limited to pesticides legally permitted for use on black-tailed prairie dogs.
Management Plans – New Mexico is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (New Mexico Black-tailed Prairie Dog Working Group 2001) for New Mexico does not support or meet all of the objectives described in the Multi-State Plan. New Mexico does not support the objective of managing or contributing to at least one complex greater than 5,000 ac (2,023 ha), although it does meet that objective (Van Pelt 2009, p. 28). It does not meet the occupied area objective or the objective of maintaining distribution throughout at least 75 percent of the historic range in the State (Van Pelt 2009, p. 28). The Statewide management plan for New Mexico has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (New Mexico Department of Game and Fish 2006, pp. 55, 577). However, this designation does not result in any protection for the species.
Classification – The species is classified as a pest species by the North Dakota Department of Agriculture (McKenna 2009, p. 1).
Shooting – The hunting season is year-round on private and public lands. No hunting license is required for residents. Nonresidents must have a nongame or furbearers license (McKenna 2009, p. 2). There is no bag limit.
Poisoning – Current regulations allow landowners to poison black-tailed prairie dogs if they are certified applicators (McKenna 2009, p. 2).
Management Plans – North Dakota is not a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (North Dakota Game and Fish Department 2001) for North Dakota does not support or meet all of the objectives described in the Multi-State Plan. North Dakota does not support any of the objectives and does not meet any objectives except distribution over at least 75 percent of the historical range (Van Pelt 2009, p. 24). The Statewide management plan for North Dakota has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (Hagen
Classification – The species is classified as wildlife-nongame (Van Pelt 2009, p. 30).
Shooting – The hunting season is year-round on private and public lands. Residents and nonresidents must have a valid State hunting license. There is no bag limit (Van Pelt 2009, p. 30).
Poisoning – A permit from the Oklahoma Department of Wildlife Conservation is required. No permit will be issued in a county with less than 100 ac (40 ha) of black-tailed prairie dog occupied habitat (Van Pelt 2009, p. 30).
Management Plans – Oklahoma is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 71). The Statewide management plan (Hoagland 2001) for Oklahoma supports, but does not meet all of the objectives described in the Multi-State Plan. Oklahoma does not meet the occupied area objective (Van Pelt 2009, p. 30). The Statewide management plan for Oklahoma has not been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (Oklahoma Department of Wildlife Conservation 2005, pp. 358, 360). However, this designation does not result in any protection for the species.
Classification – The State of South Dakota modified the designation of “species of management concern” for the black-tailed prairie dog by designating it as a pest if plague is reported east of the Rocky Mountains, the Statewide population is greater than approximately 145,000 ac (59,000 ha), or the species is colonizing within a 1 mi (1.6 km) buffer around concerned landowners (South Dakota State Legislature 2005, pp. 3-4). Currently, all of these criteria are being met; therefore, the species is considered a pest in South Dakota.
Shooting – The hunting season is year-round on private lands and open from June 15 through February 28 on public lands, except for a year-round closure in Conata Basin. Residents and nonresidents must have a valid South Dakota hunting license. There is no bag limit (Van Pelt 2009, p. 34).
Poisoning – Chemical control is limited to pesticides legally permitted for use on black-tailed prairie dogs.
Management Plans –South Dakota is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 72). The Statewide management plan (Cooper and Gabriel 2005) for South Dakota supports and meets all of the objectives described in the Multi-State Plan (Vonk and Even 2009, pp. 3-4). South Dakota's management plan also notes that the state has identified its own goals and objectives, specific to South Dakota, and reserves the right to preserve their own management authority. The Statewide management plan for South Dakota has been approved. The Statewide comprehensive wildlife strategy does not recognize the black-tailed prairie dog as a species of concern (South Dakota Department of Game, Fish, and Parks 2006, pp. 65-69).
Classification – The species is classified as nongame (Van Pelt 2009, p. 38).
Shooting – The hunting season is year-round on private and public lands. Residents and nonresidents must have a valid State hunting license. There is no bag limit for shooting. A nongame commercial dealer's permit is required for capture and selling of more than 25 individuals (Van Pelt 2009, p. 38).
Poisoning – Chemical control is limited to pesticides legally permitted for use on black-tailed prairie dogs.
Management Plans – Texas is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 72). The Statewide management plan (Texas Black-tailed Prairie Dog Working Group 2004) for Texas supports, but does not meet all of the objectives described in the Multi-State Plan. Texas does not meet the occupied area objective (Van Pelt 2009, p. 37). The Statewide management plan for Texas has been approved. The Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern (Texas Parks and Wildlife Department 2005, p. 744). However, this designation does not result in any protection for the species.
Classification – The species is classified as a nongame mammal by the Wyoming Game and Fish Department and as a pest by the Wyoming Department of Agriculture. A Memorandum of Understanding exists to coordinate management of the species between the two Departments if survey results indicate that occupied habitat for the species is less than the Wyoming Game and Fish Department objectives (Emmerich 2009, p. 3).
Shooting – The hunting season is year-round on private and public lands. Residents and nonresidents are not required to have a State hunting license. There is no bag limit for shooting (Van Pelt 2009, p. 40). Unlike most States, the Wyoming Game and Fish Commission has the authority to implement a shooting closure if it deems it necessary (Emmerich 2009, p. 3).
Poisoning – Chemical control is limited to pesticides legally permitted for use on black-tailed prairie dogs.
Management Plans – Wyoming is a signatory to the interstate Conservation Assessment and Strategy (Van Pelt 1999, p. 72). The Statewide management plan (Kruckenberg
There are several Indian Reservations within the range of the black-tailed prairie dog in Montana, New Mexico, North Dakota, and South Dakota. However, we are only aware of nine Tribes that have black-tailed prairie dog occupied habitat within their Reservations (Cheyenne River Sioux Indian Reservation, SD; Crow Indian Reservation, MT; Crow Creek Indian Reservation, SD; Fort Belknap Indian Reservation, MT; Lower Brule Indian Reservation, SD; Northern Cheyenne Indian Reservation, MT; Pine Ridge Indian Reservation, SD; Rosebud Indian Reservation, SD; and Standing Rock Indian Reservation in ND and SD). Tribes did not provide any new information. It is our understanding that hunting black-tailed prairie dogs on tribal lands requires a permit. The season is typically year-round, and there are no bag limits. Poisoning is prohibited or requires a permit. Tribes generally meet or exceed their proportional requirements for occupied habitat, as described in the Multi-State Plan.
There are numerous Federal laws, acts, and policies in addition to the Act that encourage coordination of activities that may impact wildlife and promote conservation of wildlife. Some of the most frequently encountered that may influence black-tailed prairie dog management are described. The Fish and Wildlife Coordination Act (16 U.S.C. 661
U.S. Air Force – The most recent available information indicates that no recreational shooting is allowed on Ellsworth Air Force Base and Badlands Bombing Range in South Dakota; however, some chemical control has been conducted (Morgenstern 2003, pp. 3-4). Similarly, at Buckley Air Force Base in Colorado there is no recreational shooting, but some chemical control (Friese 2003, pp. 2, 4). We have no information on black-tailed prairie dog management policies from other bases.
Department of Agriculture, U.S. Animal and Plant Health Inspection Service (APHIS) – APHIS, Wildlife Services (WS) does not manage any Federal lands. However, it supports prairie dog control programs in several States. In 2008, 129 projects were conducted regarding the control of black-tailed prairie dogs (primarily personal consultations) in Colorado, Nebraska, New Mexico, North Dakota, Oklahoma, Texas, and Wyoming (APHIS 2009, pp. 1-7). At a black-footed ferret reintroduction site in Kansas, the Service has an agreement with APHIS-WS to provide a staff person to control prairie dogs if neighboring landowners request control (LeValley 2009, pp. 1-2). APHIS-WS also has supported several research efforts in recent years regarding disease, control, non-target impacts that can be accessed on their website.
U.S. Army – The most recent available information indicates that the U.S. Army manages approximately 8,800 ac (3,600 ha) of black-tailed prairie dog occupied habitat (Hoefert 2002, pp. 2-6). The majority of occupied habitat (approximately 7,000 ac/2,800 ha) occurs on Fort Carson Garrison in Colorado (Larson 2008, p. 73).
U.S. Bureau of Indian Affairs – The U.S. Bureau of Indian Affairs' involvement in black-tailed prairie dog management has been principally through management of funding for prairie dog control programs on tribal lands in Montana, North Dakota, and South Dakota. The last large-scale chemical control effort for the species was directed by U.S. Bureau of Indian Affairs on the Pine Ridge/Oglala Sioux Reservation in South Dakota in the 1980s (Roemer and Forrest 1996, p. 353).
U.S. Bureau of Land Management – The most recent available information indicates that the U.S. Bureau of Land Management (BLM) manages approximately 39,000 ac (16,000 ha) of black-tailed prairie dog occupied habitat in Arizona, Colorado, Montana, New Mexico, North Dakota, South Dakota, and Wyoming (Lawton 2003, p. 14). The BLM manages prairie dogs to meet multiple-use resource objectives including production of livestock forage and prevention of prairie dog encroachment onto adjacent lands. The BLM generally adheres to State regulations regarding shooting, although some additional closures exist at black-footed ferret recovery sites.
U.S. Environmental Protection Agency – The U.S. Environmental Protection Agency (EPA) influences regulatory mechanisms through its pesticide labeling programs that determine which pesticides can be legally used to poison prairie dogs, who can apply them, and what other label restrictions apply. The EPA has approved several chemicals for control of black-tailed prairie dogs. The impacts of poisoning by these chemicals are described in greater detail under “Poisoning” in Factor E below. Here, we describe the regulatory process employed by the EPA.
The EPA approved zinc phosphide as a legal prairie dog control chemical in 1973 (Forrest and Luchsinger 2006, p. 124). The EPA has not responded to our request to provide information on the amount of area poisoned with zinc phosphide or the amount of chemical sold. This information would enable us to better monitor the extent and effects of poisoning with zinc phosphide on black-tailed prairie dogs.
The EPA recently permitted the use of chlorophacinone and diphacinone (both anticoagulants) to poison prairie dogs. Use of these two chemicals to control prairie dogs constitutes new uses for these poisons. Since 2004, State agricultural departments have issued Special Local Needs permits under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S. C. 136
We have limited information regarding the number of prairie dogs that are killed by anticoagulants or the amount of habitat treated. We are concerned about the impacts to both the black-tailed prairie dog and the secondary poisoning of other species, such as black-footed ferrets, other mammals, eagles, and other raptors. Despite this concern, the amount of habitat occupied by the black-tailed prairie dog throughout the United States increased by over 600 percent from 1961 until the present time.
U.S. Fish and Wildlife Service – The Service manages over 500 National Wildlife Refuges and their satellites, but only about 15 refuges, satellites, or Waterfowl Production Areas have black-tailed prairie dogs. Three refuges have a majority of occupied habitat on Service lands (approximately 6,000 ac/2,400 ha). On Charles M. Russell and UL Bend National Wildlife Refuges in Montana, black-tailed prairie dog habitat is managed to enhance its value as a black-footed ferret reintroduction site. The Rocky Mountain Arsenal National Wildlife Refuge in Colorado is managed to support black-tailed prairie dogs and a diversity of wildlife. Current Service management policy allows managers on Service lands to:
(1) control the species as needed for public health and safety,
(2) translocate up to 30 percent of the population annually with proper coordination with State wildlife agencies, and
(3) control the species to accommodate wildlife and habitat objectives after completion of a prairie dog management plan and evaluation by a Service review committee (Service 2005b, pp. 1-2).
Managers of Service lands are also encouraged to work cooperatively with neighboring landowners and local governments through the use of agreements and technical and financial assistance.
Department of Agriculture, U.S Forest Service – The U.S. Forest Service (USFS) reduced their restrictions on
U.S. National Park Service – The U.S. National Park Service manages approximately 13,777 ac (5,575 ha) of black-tailed prairie dog occupied habitat (Van Pelt 2009, p. 71). A majority of occupied habitat (8,993 ac/3,642 ha) occurs on Badlands National Park in South Dakota (Van Pelt 2009, p. 71). Some poisoning with zinc phosphide and shooting by National Park Service rangers occurs in boundary areas for “good neighbor” purposes (Davila 2009, p. 1). The most recent National Park Service guidance notes that black-tailed prairie dogs are managed under policies for conserving native species, but that some control may be necessary for “good neighbor” and human health reasons. The use of anticoagulants is not approved due to impacts on non-target species (Davila 2009, pp. 3-4).
Canada – The black-tailed prairie dog is designated as vulnerable by the Committee on the Status of Endangered Wildlife in Canada. The management plan for the black-tailed prairie dog in Canada notes that the species will be allowed to naturally fluctuate on land managed by the Province of Saskatchewan, but if colonies expand beyond their 2007 boundaries, the affected land manager may implement control measures under authority of a permit issued by Saskatchewan Environment, with nonlethal control measures encouraged (Tuckwell and Everest 2009, p. 15).
Mexico – The most recent available information indicates that there is no shooting of black-tailed prairie dogs and little chemical control in Mexico (List 2001, p. 1). The species is listed as threatened by the Lista de las Especies Amerzadas, the official endangered and threatened species list of the Mexican government (SEMARNAP 1994).
The affected State and Federal agencies are engaged in black-tailed prairie dog management and monitoring to a much greater extent than they were 10 years ago, before creation of the Prairie Dog Conservation Team. Nevertheless, agencies continue to have conflicting policies regarding prairie dog management. For example, Kansas has an approved management plan that supports all of the objectives described in the Multi-State Plan, and their Statewide comprehensive wildlife strategy recognizes the black-tailed prairie dog as a species of concern. However, the State's only complex greater than 5,000 ac (2,023 ha), which satisfies an objective from the Multi-State Plan and is also a black-footed ferret recovery site, potentially could be reduced or eliminated by the Logan County Commission, which under state law has authority to control prairie dogs, against the landowners' wishes and at the landowners' expense (Haverfield and Haverfield 2009, pp. 1-6).
In some cases, Statewide occupied habitat is increasing in spite of, rather than because of, agency actions, which indicates that the species has been persistent despite state management contradictions. However, there is no evident correlation between the magnitude of increase in the species' population in a particular State and the extent to which a State is engaged in proactive management. Since the early 1960s, occupied habitat has increased in every State. Throughout the United States, occupied habitat is estimated to have increased by over 600 percent from 1961 until the present time. This increase has occurred despite regulatory mechanisms that favor control of the species and other factors.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that inadequate regulatory mechanisms are not a limiting factor for the species. Consequently, we do not anticipate that impacts from inadequate regulatory mechanisms are likely to negatively impact the status of the species in the foreseeable future.
We conclude that the best scientific and commercial information available indicates that the black-tailed prairie dog is not now, or in the foreseeable future, threatened by inadequate regulatory mechanisms to the extent that listing under the Act as an endangered or threatened species is warranted at this time.
Under this factor we evaluate poisoning, drought, and climate change.
Early poisoning of prairie dogs typically was conducted with strychnine and carbon bisulphide, with Compound-1080 becoming popular after World War II (Forrest and Luchsinger 2006, p. 122). Early poisoning efforts led to extirpation of the black-tailed prairie dog in Arizona by approximately 1940 (Arizona Game and Fish Dept. 1988, p. 26). Both Compound-1080 and strychnine can cause secondary poisoning of non-target predators and scavengers that prey on poisoned prairie dogs. Concern over secondary poisoning from strychnine and Compound-1080 led to a report by Cain
These recommendations led to Executive Order 11643, which in 1972 banned the use of toxicants that might cause secondary poisoning on public lands or via Federal programs. In 1982, this order was revoked by Executive Order 12342. However, poisoning prairie dogs with strychnine and Compound-1080 did not resume. The total area throughout the range of the species that was poisoned from 1915-1965 was likely more than 37 million ac (15 million ha) (Forrest and Luchsinger 2006, p. 120). The broad-scale, government sponsored poisoning that occurred during the first half of the twentieth century likely contributed to the species reaching a low point of 364,000 ac (147,000 ha) of occupied habitat in the early 1960s. Since then, poisoning has generally occurred on a more local scale and been conducted by individual landowners.
Since 1973, the two most commonly used toxicants have been zinc phosphide (administered via oats or other grain) and fumigants (administered via insertion into
Anticoagulants such as chlorophacinone and diphacinone cause a more prolonged period of distress for the black-tailed prairie dog prior to mortality than zinc phosphide. Anticoagulants act as blood thinners, with poisoned animals loosing blood through various orifices, including eventually the skin membranes, over a period of weeks (Erickson and Urban 2004, p. 3). For example, two weeks after an illegal application of chlorophacinone on 160 ac (65 ha) in South Dakota in 2005, we found dying prairie dogs. In contrast, zinc phosphide causes mortality in a matter of hours. We do not have any information on the amount of anticoagulants sold for prairie dog control or the amount of land treated.
The most complete information that we have regarding the amount of black-tailed prairie dog habitat poisoned or the amount of poison sold is from the South Dakota Department of Agriculture, which jointly manages prairie dog control with the South Dakota Department of Game, Fish and Parks. South Dakota is the only State that has been permitted by EPA to manufacture and sell zinc phosphide. Sales from the South Dakota bait station are largely limited to South Dakota, Wyoming, and Nebraska. The available information indicates that sales from the South Dakota bait station fluctuate, but in general have increased since we removed the black-tailed prairie dog from the candidate list in 2004 (Cerovski 2004, p. 101; Kempema 2007, p. 8). Figure 1 includes the total sales of zinc phosphide bait by the South Dakota bait station in the 4 years prior to candidate removal and the 4 years following candidate removal.
Figure 1. Sales of Zinc Phosphide Bait Prior (Fridley 2003, p. 2) and Subsequent to (Josten 2009, p. 3) our 2004 Removal of the Black-tailed Prairie Dog from the Federal Candidate List. Total sales for 2009 not yet tabulated.
Zinc phosphide sales do not necessarily reflect effective application. For example, individuals may stockpile poison, re-treat previously poisoned land, or apply it at rates different than the recommended rate of 1/3 pound per acre (Hygnstrom and Virchow 1994, p. B89). Additionally, the South Dakota bait station is only one of several suppliers of prairie dog poison. However, to provide some perspective, if all of the zinc phosphide bait were applied at the recommended rate of 1/3 pound per acre, enough poison has been sold by this one facility since removal of the black-tailed prairie dog from the candidate list in 2004 to theoretically poison over 3.5 million ac (1.4 million ha). This equates to more than all estimated occupied habitat in the United States with enough remaining to poison an additional one million ac (400,000 ha).
Some additional information regarding the extent of poisoning is available for other States within the range of the black-tailed prairie dog. In Kansas, an estimated 40,000 ac (16,200 ha) of private land have been poisoned recently (Van Pelt 2009, p. 16). There has been no indication of an increase in poisoning in Montana in recent years (Bamber 2009, p. 2). The most recent survey in North Dakota noted that approximately 43 percent of colonies on private land (approximately 9,700 ac/3,900 ha) had some indication of poisoning, although total occupied habitat increased (Knowles 2007, p. 2). An estimated 900 ac (400 ha) have been poisoned recently in Oklahoma (Van Pelt 2009, p. 30). The Texas Wildlife
If we total poison estimates for 2008 from the South Dakota Bait Station, Kansas, North Dakota, Oklahoma, Texas, and Pawnee National Grasslands, the amount of black-tailed prairie dog occupied habitat poisoned in 2008 was approximately 801,000 ac (324,000 ha), or 33 percent of estimated range wide occupied habitat. This figure does not include estimates for Montana or New Mexico, and only partial estimates are available for Colorado, Nebraska, and Wyoming.
In a review of available research, Andelt (2006, p. 135) concluded that colony size increases by about 30 percent annually for several consecutive years following poisoning; after intense but not total elimination, colony size can initially increase by as much as 71 percent annually. Colonies usually require 3 to 5 years to attain pre-treatment size. The author further notes that complete eradication with 100 percent mortality is “formidably elusive.” Earlier, government sponsored poisoning efforts such as those that led to the eradication of the black-tailed prairie dog in Arizona were likely more effective due to a synchronized effort by the Federal government over a large landscape. In recent years poisoning has typically been conducted over a smaller landscape such as the property of a single landowner. Despite the long-term and widespread poisoning of the black-tailed prairie dog, increasing population trends both range wide and Statewide indicate that localized poisoning is not adversely impacting the species' status and long-term conservation.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that poisoning is not a threat to the species. There is no evidence that poisoning poses a significant threat to the species now or into the future.
Drought is a natural and cyclical occurrence within the range of the black-tailed prairie dog to which the animal has adapted (Forrest 2005, p. 528). In at least some instances, occupied habitat tends to increase during periods of drought and densities decrease, because animals spread out in search of food (Young 2008, p. 5). However, we are aware of no information that quantifies the effect of drought, singly or in conjunction with other threats, on the species range wide.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, suggests that drought is not a limiting factor for the species. Therefore, we have no reason to suspect this poses a significant threat to the species.
No information on the direct relationship between climate change and black-tailed prairie dog population trends is available. However, climate change could potentially impact the species. According to the Intergovernmental Panel on Climate Change (IPCC 2007, p. 6), “warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level.” Average Northern Hemisphere temperatures during the second half of the 20
Changes in the global climate system during the 21
The IPCC (2007, pp. 22, 27) report outlines several scenarios that are virtually certain or very likely to occur in the 21
(1) over most land, there will be warmer and fewer cold days and nights, and warmer and more frequent hot days and nights;
(2) areas affected by drought will increase; and
(3) the frequency of warm spells and heat waves over most land areas will likely increase.
The IPCC predicts that the resiliency of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change associated disturbances (e.g., flooding, drought, wildfire, and insects), and other global drivers. With medium confidence, IPCC predicts that approximately 20 to 30 percent of plant and animal species assessed so far are likely to be at an increased risk of extinction if increases in global average temperature exceed 1.5 – 2.5 °C (3 – 5 °F).
The black-tailed prairie dog, along with its habitat, will likely be affected in some manner by climate change. A shift in the species' geographic range may occur due to an increase in temperature and drought, although climate change would likely not pose as great a risk to prairie dog habitat as it would to species in polar, coastal, or montane ecosystems. Additionally, a strong relationship between plague outbreaks and climatic variables has been established (Parmenter
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, indicates that climate change is not a threat to the species.
Poisoning has impacted black-tailed prairie dogs from the early 1900s until the present time. Efforts to obtain more detailed information regarding the extent of poisoning, as well as efforts to interpret the additional recent impacts of anticoagulants, have been unsuccessful. Drought is a natural phenomenon throughout the range of the black-tailed prairie dog to which we believe the species has adapted. Continued climate change will likely cause shifts in the species' range, as well as changes in occurrence of plague. Additional information, particularly regarding impacts from poisoning and climate change, would improve our understanding of the effects on the species.
The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat since the early 1960s, shows that poisoning, drought, climate change, or other factors are not threats to the species. Consequently, we do not anticipate that impacts from these stressors are likely to negatively impact the status of the species in the foreseeable future.
We conclude that the best scientific and commercial information available indicates that the black-tailed prairie dog is not now, or in the foreseeable future, threatened by poisoning, drought, or climate change to the extent that listing under the Act as an endangered or threatened species is warranted at this time.
As required by the Act, we considered the five factors in assessing whether the black-tailed prairie dog is threatened or endangered throughout all or a significant portion of its range. We have carefully examined the best scientific and commercial information available regarding the status and the past, present, and future threats faced by the black-tailed prairie dog. We reviewed information provided by the petitioners, information in our files, other available published and unpublished information, and information provided by other interested parties during the status review. We also consulted with Federal and State land managers. On the basis of the best scientific and commercial information available, we find that the magnitude and imminence of threats do not indicate that the black-tailed prairie dog is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout its entire range.
There have been several impacts to the black-tailed prairie dog, in particular habitat loss due to conversion to cropland, sylvatic plague, and poisoning. Sylvatic plague and poisoning remain significant population stressors and are exacerbated by conflicting Federal and state management policies. Additionally, climate change may potentially impact the species in future decades. The effects of plague could be exacerbated by climate change in the future. However, the current status of the black-tailed prairie dog does not suggest that plague, or the combined effects of plague and climate change, are limiting factors for the species in the foreseeable future, and we do not believe these will result in significant population-level impacts. In spite of these stressors and resulting impacts on the species, occupied habitat (a surrogate measure for population trends and status) in the United States has increased by more than 600 percent since the early 1960s. The species has proven to be quite resilient and is not expected to be significantly affected by these stressors in the future.
Improved management and continued research regarding plague and climate change could further improve the status of the black-tailed prairie dog. Continuing research will help increase our understanding of how plague, climate change, and the combined effects of these stressors will affect the species in the future. This will allow for informed management decisions related to these stressors that could further improve the status of the species. It could also improve the status of the many species that depend upon the prairie dog as a food source or upon prairie dog burrows for shelter. The smaller, more scattered prairie dog complexes that are typical today cannot support the diversity of wildlife that historically depended upon the prairie dog. For example, the black-footed ferret requires large, healthy prairie dog complexes for its survival.
Our review of the information pertaining to the five factors does not support the assertion that there are threats of sufficient imminence, intensity, or magnitude to cause substantial losses of population distribution or viability of the black-tailed prairie dog. Therefore, we do not find that the black-tailed prairie dog is in danger of extinction (endangered), nor is it likely to become endangered within the foreseeable future (threatened) throughout its entire range. Therefore, listing the species as threatened or endangered under the Act is not warranted at this time.
After assessing whether the species is threatened or endangered throughout its range, we next consider whether a distinct vertebrate population segment (DPS) exists or whether any significant portion of the black-tailed prairie dog's range meets the definition of endangered or is likely to become endangered in the foreseeable future (threatened).
To interpret and implement the distinct vertebrate population segment (DPS) provisions of the Act, the Service and the National Oceanic and Atmospheric Administration published the
(1) The discreteness of a population in relation to the remainder of the species to which it belongs;
(2) the significance of the population segment to the species to which it belongs; and
(3) the population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification.
Both discreteness and significance are required for a species population to meet our criteria for classification as a DPS. If any portion of a species population is considered a valid DPS, we may list, delist, or reclassify that DPS under the Act. We address these elements with respect to the black-tailed prairie dog.
Under the DPS policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions.
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
We do not consider any population segment of black-tailed prairie dog to be markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. As a colonial species, black-tailed prairie dogs are naturally distributed across the landscape in a discontinuous fashion. Black-tailed prairie dog occupied habitat exists in a constantly shifting mosaic throughout an estimated 283 million ac (115 million ha) of suitable habitat that occurs across a range of approximately 440 million ac (178 million ha). Because this discontinuous distribution is the “baseline” condition for the species, for us to consider any geographic discontinuity as being evidence of marked separation (i.e., discreteness) under the DPS policy, we would need the best available information to indicate that the amount of discontinuity is over and above what is considered to be normal for the species.
We do not have detailed mapping of occupied habitat throughout the range of the species. We recognize the likely occurrence of some small, isolated black-tailed prairie dog colonies, but have very limited information available that identifies their locations. Therefore, we looked for other measures of discontinuity, such as measures of genetic or morphological differences as guided by the DPS policy, to determine whether any populations showed evidence of marked separation. There is minimal information available to us to indicate that any population segments express any genetic or morphological discontinuity due to separation from other prairie dog populations. We are aware of one study that found measurable genetic divergence in certain populations in Texas (Biggs 2007, p. 51). However, other studies have concluded that genetic differences are often as great among individuals from local populations as those from vastly different parts of their range (Chesser 1983, p. 329; Trudeau
The black-tailed prairie dog spans international boundaries between the United States, Canada, and Mexico, with approximately 98 percent of occupied habitat occurring in the United States. However, there are no substantial differences in exploitation, habitat management, or regulatory mechanisms between the three countries. Additionally, the relative distribution of prairie dogs between the three countries has remained constant in recent years. Therefore, we do not believe that international boundaries provide evidence of discrete prairie dog populations.
We determine, based on a review of the best available information, that no black-tailed prairie dog population segments meet the discreteness conditions of the 1996 DPS policy. Therefore, no black-tailed prairie dog population segment qualifies as a DPS under our policy and is not a listable entity under the Act. The DPS policy is clear that significance is analyzed only when a population segment has been identified as discrete. Because no discrete populations of black-tailed prairie dogs exist, we did not further analyze whether any populations meet the criteria in the DPS policy for significance.
Having determined that the black-tailed prairie dog does not meet the definition of a threatened or endangered species range wide or in a DPS, we must next consider whether there are any significant portions of the range where the black-tailed prairie dog is in danger of extinction or is likely to become endangered in the foreseeable future.
On March 16, 2007, a formal opinion was issued by the Office of the Solicitor of the Department of the Interior, “The meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range'” (USDI 2007c). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range is significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.
In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) the portions may be significant, and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not significant, such portions will not warrant further consideration.
If we identify portions that warrant further consideration, we then determine whether the species is threatened or endangered in these portions of its range. Depending on the biology of the species, its range, and the threats it faces, the Service may address either the significance question or the status question first. Thus, if the Service considers significance first and determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there. Likewise, if the Service considers status first and determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. However, if the Service determines that both a portion of the range of a species is significant and the species is threatened or endangered there, the Service will specify that portion of the range as threatened or endangered under section 4(c)(1) of the Act.
The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability found within the range of the species. A portion of the range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat, or if its location or characteristics make it less susceptible
Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is necessarily a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy that is important to the conservation of the species.
Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements.
We evaluated the black-tailed prairie dog's current range in the context of the primary stressors affecting the species (plague, inadequate regulatory mechanisms, and poisoning) to determine if there is any apparent geographic concentration of these stressors. If effects to the species from all of these stressors are not disproportionate in any portion of the species' range, no portion is likely to warrant further consideration; and a determination of significance based upon resiliency, redundancy, or representation is not necessary.
Plague – We regard sylvatic plague as the most substantial impact on the black-tailed prairie dog at the present. However, with the spread of plague into South Dakota, the disease now is present in portions of every State within the species' range, and the effects of plague are presumably no longer geographically concentrated in the western portion of the range. The current status of the black-tailed prairie dog, as indicated by increasing trends in the species' occupied habitat in every State, since the early 1960s, indicates that plague is not a limiting factor for the species in any State. These increasing trends are evident even in States with a long history of plague. Plague does not appear to result in disproportionate impacts to the black-tailed prairie dog in any portion of its range. Therefore, a determination of significance based upon resiliency, redundancy, or representation is not necessary.
Inadequate regulatory mechanisms – We evaluated the differences in management between States. All States within the historical range of the black-tailed prairie dog demonstrate both positive and negative management practices with regard to the species. Some States are more engaged than others; however, all have had stable to increasing black-tailed prairie dog populations since 1961. Additionally, there is no evident correlation between the status of the species' population in a particular State and the extent to which a State is engaged in proactive management. Differences in management and the adequacy of regulatory mechanisms do not appear to result in disproportionate impacts to the black-tailed prairie dog in any portion of its range. Therefore, a determination of significance based upon resiliency, redundancy, or representation is not necessary.
Poisoning – The most complete information with regard to the extent of poisoning is probably available for Arizona, South Dakota, Kansas, North Dakota, Oklahoma, and Texas. Only partial estimates are available for Colorado, Nebraska, and Wyoming. Little or no information is available for Montana and New Mexico. However, black-tailed prairie dog populations have been stable to increasing in all States. Some of the most intensive poisoning we are aware of has occurred in South Dakota, which is also the State with the largest percentage increase in the species' population. Poisoning does not appear to result in disproportionate impacts to the black-tailed prairie dog in any portion of its range. Therefore, a determination of significance based upon resiliency, redundancy, or representation is not necessary.
We do not find that the black-tailed prairie dog is in danger of extinction now, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, listing the black-tailed prairie dog as threatened or endangered under the Act is not warranted at this time.
We request that you submit any new information concerning the status of, or threats to, this species to our South Dakota Ecological Services Office (see
A complete list of all cited references is available on the Internet at
The primary authors of this document are the staff members of the U.S. Fish and Wildlife Service, South Dakota Ecological Services Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose to designate critical habitat for the vermilion darter (
We will accept comments from all interested parties until February 1, 2010. We must receive requests for public hearings, in writing, at the address shown in the
You may submit comments by one of the following methods:
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We will not accept e-mail or faxes. We will post all comments on
Cary Norquist, Deputy Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, Jackson, Mississippi, 39213; telephone: 601-321-1127; facsimile: 601-965-4340. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
(2) Comments or information that may assist us in identifying or clarifying the primary constituent elements.
(3) Specific information on:
• The amount and distribution of vermilion darter habitat,
• What areas occupied at the time of listing and that contain features essential to the conservation of the species which may require special management considerations or protections we should include in the designation and why, and
• What areas not occupied at the time of listing are essential for the conservation of the species and why.
(4) Land-use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities (e.g., small businesses or small governments) or families, and the benefits of including or excluding areas that exhibit these impacts.
(6) Whether any specific areas we are proposing as critical habitat should be excluded under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(7) Information on any quantifiable economic costs or benefits of the proposed designation of critical habitat.
(8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concern and comments.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For more information on the vermilion darter, refer to the final listing rule published in the
The vermilion darter is a narrowly endemic fish species, occurring in sparse, fragmented, and isolated populations. The species is only known in parts of the upper mainstem reach of Turkey Creek and four tributaries in Pinson, Jefferson County, Alabama (Boschung and Mayden 2004, p. 520). Suitable streams have pools of moderate current alternating with riffles of moderately swift current, and low water turbidity.
The vermilion darter was listed as endangered (66 FR 59367, November 28, 2001) because of ongoing threats to the species and its habitat from urbanization within the Turkey Creek watershed. The primary threats to the species and its habitat are degradation of water quality and substrate components due to sedimentation and other pollutants, and altered flow regimes from activities such as construction and maintenance activities; impoundments (five within the Turkey Creek and Dry Creek system); instream gravel extractions; off-road vehicle usage; road, culvert, bridge, gas, and water easement construction; and stormwater management (Drennen personal observation 1999-2009; Blanco and Mayden 1999, pp.18-20). These activities lead to water quality degradation and the production of pollutants (sediments, nutrients from sewage, pesticides, fertilizers, and industrial and stormwater effluents), stream channel instability, fragmentation, and reduced connectivity of the habitat by altering the stream banks and bottoms; degrading the riffles, runs, and pools; and producing changes in water quantity and flow necessary for spawning, feeding, resting, and other life history functions of the species.
The vermilion darter (
On November 27, 2007, the Center for Biological Diversity filed a lawsuit against the Secretary of Interior for our failure to timely designate critical habitat for the vermilion darter (
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the landowner's obligation landowneris not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
To be considered for inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain the physical or biological features that are essential to the conservation of the species. Areas supporting the essential physical or biological features are identified, to the extent known using the best scientific data available, as the habitat areas that provide essential life cycle needs of the species; (i.e., areas on which are found the primary constituent elements laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species). Habitat within the geographical area occupied by the species at the time of listing that contains features essential to the conservation of the species meets the definition of critical habitat only if these features may require special management consideration or protection. Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that the best available scientific data demonstrate that the designation of those areas is essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas we should designate as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. In particular, we recognize that climate change may cause changes in the arrangement of occupied habitat stream reaches. Climate change may lead to increased frequency and duration of severe storms and droughts (Golladay
The information currently available on the effects of global climate change and increasing temperatures does not
Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined based on the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), section 7 consultations, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species; or (2) the designation of critical habitat would not be beneficial to the species.
There is no documentation that the vermilion darter is threatened by taking or other human activity. In the absence of finding that the designation of critical habitat would increase threats to the species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits include: (1) Triggering consultation, under section 7 of the Act, in new areas for action in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) identifying the physical and biological features essential to the conservation of the vermilion darter and focusing conservation activities on these essential features and areas; (3) providing educational benefits to State or county governments or private entities engaged in activities or long-range planning in areas essential to the conservation of the species; and (4) preventing people from causing inadvertent harm to the species. Conservation of the vermilion darter and the essential features of the habitat will require habitat protection and restoration, which will be facilitated by knowledge of habitat locations and the physical and biological features of those habitats.
Therefore, since we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that the designation of critical habitat for the vermilion darter is prudent.
As stated above, section 4(a)(3) of the Act requires the designation of critical habitat concurrently with the species' listing “to the maximum extent prudent and determinable.” Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(1) Information sufficient to perform required analyses of the impacts of the designation is lacking, or
(2) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the vermilion darter, the historical distribution of the vermilion darter, and the habitat characteristics where they currently survive. This and other information represent the best scientific and commercial data available and led us to conclude that the designation of critical habitat is determinable for the vermilion darter.
As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining which areas within the geographical area occupied by the species at the time of listing contain the features essential to the conservation of the vermilion darter that may require special management considerations or protections, and which areas outside of the geographical area occupied at the time of listing are essential for the conservation of the species.
We reviewed the available information pertaining to historical and current distributions, life histories, and habitat requirements of this species. Our sources included peer-reviewed scientific publications; unpublished survey reports; unpublished field observations by Service, State, and other experienced biologists; notes and communications from qualified biologists or experts; and Service publications such as the final listing rule for the vermilion darter and the Recovery Plan for the Vermilion Darter.
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to propose as critical habitat, we consider the physical and biological features that are essential to the conservation of the species which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.
We consider the specific physical and biological features to be the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial
Little is known about the specific space requirements of the vermilion darter within the Turkey Creek system; however, in general, darters depend on space from geomorphically stable streams with varying water quantities and flow. Vermilion darters are found in the transition zone between a riffle (shallow, fast water) or run (deeper, fast water) and a pool (deep, slow water) (Blanco and Mayden 1999, pp.18-20), usually at the head and foot of the riffles and downstream of the run habitat. Construction of impoundments in the Turkey Creek watershed has altered stream banks and bottoms; degraded the riffles, runs, and pools; and altered the natural water quantity and flow of the stream. A stable stream maintains its horizontal dimension and vertical profile (stream banks and bottoms), thereby conserving the physical characteristics of a stream, including bottom features such as riffles, runs, and pools and the transition zones between these features. The riffles, runs, and pools not only provide space for the vermilion darter, but also provide cover and shelter for breeding, reproduction, and growth of offspring.
In addition, the current range of the vermilion darter is reduced to localized sites due to fragmentation, separation, and destruction of vermilion darter populations. There are both natural (waterfall) and manmade (impoundments) dispersal barriers that not only contribute to the separation and isolation of vermilion darter populations, but also affect water quality. Fragmentation of the species' habitat has subjected these small isolated populations within the Turkey Creek system to genetic isolation and reduction of space for rearing and reproduction, population maintenance and reduction of adaptive capabilities, and increased likelihood of local extinctions (Hallerman 2003, pp. 363-364; Burkhead
Based on the biological information and needs discussed above, it is essential to protect riffles, runs, and pools, and the continuity of these structures, to accommodate feeding, spawning, growth, and other normal behaviors of the vermilion darter and to promote genetic flow within the species.
Much of the cool, clean water provided to the Turkey Creek main stem comes from consistent and steady groundwater sources (springs) that contribute to the flow and water quantity in the tributaries (Beaver Creek, Dry Creek, Dry Branch, and the unnamed tributary to Beaver Creek). Flowing water provides a means for transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, and diluting non-point and point source pollution. Impoundments within Turkey and Dry creeks not only serve as dispersal barriers but have also altered stream flows from natural conditions. Without clean water sources, water quality and water quantity would be considerably lower and would significantly impair the normal life stages and behavior of the vermilion darter.
Favorable water quantity is an average daily discharge of over 50 cubic feet per second within the Turkey Creek main stem (U.S. Geological Survey 2009, compiled from average annual statistics). Along with this average daily discharge, both minimum and flushing flows are necessary within the tributaries to maintain all life stages and to remove fine sediments and dilute other pollutants (Drennen personal observation, February 2009a; Instream Flow Council 2004, pp.103-104, 375; Gilbert
Factors that can potentially alter water quality are decreases in water quantity through droughts and periods of low seasonal flow, precipitation events, non-point source runoff, human activities within the watershed, random spills, and unregulated discharge events (Instream Flow Council 2004, pp.29-50). These factors are particularly harmful during drought conditions when flows are depressed and pollutants are concentrated. Impoundments also affect water quality by reducing water flow, altering temperatures, and concentrating pollutants (Blanco and Mayden 1999, pp. 5-6, 36). Nonpoint-source pollution and alteration of flow regimes are primary threats to the vermilion darter in the Turkey Creek watershed.
Aquatic life, including fish, require acceptable levels of dissolved oxygen. The type of organism and its life stage determine the level of oxygen required. Generally, among fish, cold water species and young life forms are the most sensitive. The amount of dissolved oxygen that is present in the water (the saturation level) depends upon water temperature. As the water temperature increases, the saturated dissolved oxygen level decreases. The more oxygen there is in the water, the greater the assimilative capacity (ability to consume organic wastes with minimal impact) of that water; lower water flows have a reduced assimilative capacity (Pitt 2000, pp. 6-7). Low-flow conditions affect the chemical environment occupied by the fish, and extended low-flow conditions coupled with higher pollutant levels would likely result in behavior changes within all life stages, but could be particularly detrimental to
Optimal water quality lacks harmful levels of pollutants, such as inorganic contaminants like copper, arsenic, mercury, and cadmium; organic contaminants such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorous fertilizers; and petroleum distillates. Sediment is the most abundant pollutant produced in the Mobile River Basin (Alabama Department of Environmental Management 1996, pp.13-15). Siltation (excess sediments suspended or deposited in a stream) contributes to turbidity of the water and has been shown to suffocate aquatic insects, smother fish eggs, clog fish gills, and fill in essential interstitial spaces (spaces between stream substrates) used by aquatic organisms for spawning and foraging; therefore, siltation negatively impacts fish growth, physiology, behavior, reproduction, and survival. Nutrification (excessive nutrients present, such as nitrogen and phosphorous) promotes heavy algal growth that covers and eliminates clean rock or gravel habitats necessary for vermilion darter feeding and spawning. High conductivity values are an indicator of hardness and alkalinity and may denote water nitrification (Hackney
Appropriate water quality and quantity are necessary to dilute impacts from storm water and other non-natural effluents. Harmful levels of pollutants impair critical behavior functions in fish and are reflected in population-level responses (reduced population size, biomass, year class success, etc.). Adequate water quantity and flow and good to optimal water quality are essential for normal behavior, growth, and viability during all life stages.
The vermilion darter requires relatively clean, cool flowing water within the Turkey Creek main stem and tributaries. The Clean Water Act (33 U.S.C. 1251
The vermilion darter is a benthic (bottom) insectivore consuming larval chironomids (midges), tipulids (crane flies), and hydropsychids (caddisflies), along with occasional microcrustaceans (Boschung and Mayden 2004, p. 520; Khudamrongsawat
Based on the biological information and needs discussed above, we believe it is essential that vermilion darter habitat consist of unaltered, connected, stable streams to maintain flow, prevent sedimentation, and promote good water quality absent harmful pollutants.
Vermilion darters depend on specific bottom substrates for normal and robust life processes such as spawning, rearing, protection of young during life stages, protection of adults when threatened, foraging, and feeding. These bottom substrates are dominated by fine gravel, along with some sand, coarse gravel, cobble, and bedrock (Blanco and Mayden 1999, pp. 24-26; Drennen personal observation, February 2009b). The vermilion darter prefers small-sized gravel for spawning substrates (Blanchard and Stiles 2005, pp.1-12). Occasionally, there are also small sticks and limbs on the bottom substrate and within the water column (Stiles pers. comm., September 1999; Drennen personal observation, May 2007).
Excessive fine sediments of small sands, silt, and clay may embed in the larger substrates, filling in interstitial spaces between these structures. Loss of these interstitial areas removes spawning and rearing areas, foraging and feeding sites, and escape and protection localities (Sylte and Fischenich 2002, pp. 1-25). In addition, dense, filamentous algae growth on the substrates may restrict or eliminate the usefulness of the interstitial spaces by the vermilion darter.
Geomorphic instability within the streambed and along the banks results in scouring and erosion of these areas, leading to sedimentation and loss of shelter and cover for vermilion darters, their eggs, and their young. This fine sediment deposition also reduces the area available for food sources, such as macroinvertebrates and periphyton (Tullos 2005, pp. 80-81).
Thus, based on the biological information and needs above, essential vermilion darter habitat consists of stable streams with a stream flow sufficient to remove sediment and eliminate the filling in of interstitial spaces and substrate to accommodate spawning, rearing, protection of young, protection of adults when threatened, foraging, and feeding.
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of vermilion darter. The physical and biological features are the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species. Areas designated as critical habitat for vermilion darter contain only occupied areas within the species' historical geographic range, and contain sufficient PCEs to support at least one life history function.
Based on our current knowledge of the life history, biology, and ecology of vermilion darter and the requirements of the habitat to sustain the essential life history functions of the species, we determined that the PCEs specific to vermilion darter are:
(1) Geomorphically stable stream bottoms and banks (stable horizontal dimension and vertical profile) in order to maintain t bottom features (riffles, runs, and pools) and transition zones between bottom features , to continue appropriate habitat to maintain essential riffles, runs, and pools, to promote connectivity between spawning, foraging and resting sites, and to maintain gene flow throughout the population.
(2) Instream flow regime with an average daily discharge over 50 cubic feet per second, inclusive of both surface runoff and groundwater sources (springs and seepages).
(3) Water quality with temperature not exceeding 26.7 °C (80 °F), dissolved oxygen 6.0 milligrams or greater per liter, turbidity of an average monthly reading of 10 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) and 15mg/l Total Suspended Solids (TSS; measured as mg/l of sediment in water ) or less; and a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of no greater than 225 micro Siemens per centimeter at 26.7 ° C (80 °F).
(4) Bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand and gravel, with low amounts of fine sand and sediments within the interstitial spaces of the substrates.
With this proposed designation of critical habitat, we intend to conserve the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the PCEs sufficient to support the life history functions of the species. Each of the areas proposed as critical habitat in this rule contains sufficient PCEs to provide for one or more of the life history functions of the vermilion darter.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain the physical and biological features that are essential to the conservation of the species and whether those features may require special management considerations or protection.
The five units we are proposing for designation as critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the species. None of the proposed critical habitat units are presently under special management or protection provided by a legally operative plan or agreement for the conservation of the vermilion darter. Various activities in or adjacent to the critical habitat units described in this proposed rule may affect one or more of the PCEs. For example, features in the proposed critical habitat designation may require special management due to threats posed by urbanization activities (such as stream channel modification for flood control or gravel extraction) that could cause an increase in bank erosion; by significant changes in the existing flow regime within the streams due to water diversion or withdrawal; by significant alteration of water quality; by significant alteration in the quantity of groundwater and alteration of spring discharge sites; by significant changes in stream bed material composition and quality due to construction projects and maintenance activities; by off-road vehicle use; by gas and water easements; by bridge construction; by culvert installation; by stormwater management; and by other watershed and floodplain disturbances that release sediments or nutrients into the water. Other activities that may affect PCEs in the proposed critical habitat units include those listed in the “Effects of Critical Habitat” section below.
As stated above, designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of the vermilion darter. Activities with a Federal nexus that may affect areas outside of critical habitat, such as development; road construction and maintenance; oil, gas, and utility easements; and effluent discharges, are still subject to review under section 7 of the Act if they may affect the vermilion darter, because Federal agencies must consider both effects to the species and effects to critical habitat independently. The Service should be consulted for disturbances to areas both within the proposed critical habitat unist as well as upstream of those areas known to support vermilion darter, including springs and seeps that contribute to the instream flow in the tributaries, especially during times when stream flows are abnormally low (i.e., during droughts). The prohibitions of section 9 of the Act against the take of listed species also continue to apply both inside and outside of designated critical habitat.
Using the best scientific and commercial data available, as required by section 4(b)(1)(A) of the Act, we identified those areas to propose for designation as critical habitat that, within the geographical area occupied by the species at the time of listing, possess those physical and biological features essential to the conservation of the vermilion darter which may require special management considerations or protection. We also considered the area outside the geographical area occupied by the species at the time of listing for any areas that are essential for the conservation of the vermilion darter.
We used information from surveys and reports prepared by the Alabama Department of Conservation and Natural Resources, Alabama Geological Survey, Samford University, University of Alabama, and the Service to identify the specific locations occupied by the vermilion darter. Currently, occupied habitat for the species is limited and isolated. The species is currently located within the upper mainstem reaches of Turkey Creek and four tributaries: unnamed tributary to Beaver Creek, Beaver Creek, Dry Creek, and Dry Branch in Pinson, Jefferson County, Alabama (Blanco and Mayden 1999, pp.18-20; Drennen pers. observ. March 2008).
Following the identification of the specific locations occupied by the vermilion darter, we determined the appropriate length of stream segments by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the vermilion darter. Because populations of vermilion darters are isolated due to dispersal barriers, to set the upstream and downstream limits of each critical habitat unit, we identified landmarks (bridges, confluences, road crossings, and dams) above and below the upper and lowermost reported locations of the vermilion darter in each stream reach to ensure incorporation of all potential sites of occurrence. These stream reaches were then digitized using 7.5' topographic maps and ARCGIS to produce the critical habitat map.
We are proposing to designate as critical habitat all stream reaches in occupied habitat. We have defined “occupied habitat” as those stream reaches occupied at the time of listing and still known to be occupied by the vermilion darter ; these stream reaches comprise the entire known range of the
The five proposed units contain one or more of the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of this species and support multiple life processes for the vermilion darter.
When identifying proposed critical habitat boundaries, we make every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands usually lack PCEs for endangered or threatened species. Areas proposed for critical habitat for the vermilion darter below include only stream channels within the ordinary high water line and do not contain any developed areas or structures.
We are proposing to designate 5 units, totaling approximately 21.0 km (13.0 mi), as critical habitat for the vermilion darter. The critical habitat units described below constitute our best assessment of areas that currently meet the definition of critical habitat for the vermilion darter. Table 1 identifies the proposed units for the species; shows the occupancy of the units; the approximate extent proposed as critical habitat for the vermilion darter; and ownership of the proposed designated areas.
We present brief descriptions of each unit and reasons why they meet the definition of critical habitat below. The proposed critical habitat units include the stream channels of the creek and tributaries within the ordinary high water line. As defined in 33 CFR 329.11, the ordinary high water line on nontidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural water line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. In Alabama, the riparian landowner owns the stream to the middle of the channel.
For each stream reach proposed as a critical habitat, the upstream and downstream boundaries are described generally below; more precise descriptions are provided in the Regulation Promulgation at the end of this proposed rule.
Unit 1 includes 15.2 km (9.4 mi) in Turkey Creek from Shadow Lake Dam downstream to the Section 13/14 (T15S, R2W) line, as taken from the U.S. Geological Survey 7.5 topographical map (Pinson quadrangle).
Approximately 14.9 km (9.2 mi), or 98 percent of this area is privately owned. The remaining 0.3 km (0.2 mi), or 2 percent is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements.
Turkey Creek supports the most abundant and robust populations of the vermilion darter in the watershed. Populations of vermilion darters are small and isolated within specific habitat sites of Turkey Creek from Shadow Lake dam downstream to the old strip mine pools (13/14 S T15S R2W section line, as taken from the U.S. Geological Survey 7.5 topographical map (Pinson quadrangle)). We consider the entire reach of Turkey Creek that composes Unit 1 to be occupied.
One of the three known spawning sites for the species is located within the confluence of Turkey Creek and Tapawingo Spring run (PCE 4). In addition, Turkey Creek provides the most darter habitat for the vermilion darters with an abundance of pools, riffles, and runs (PCE 1). These geomorphic structures provide the species with spawning, foraging, and resting areas (PCEs 1 and 4), along with good water quality, quantity, and flow, which support the normal life stages and behavior of the vermilion darter and the species' prey sources (PCEs 2 and 3).
There are five impoundments in Turkey Creek (Blanco and Mayden 1999, pp. 5-6, 36, 63) limiting the connectivity of the range and expansion of the species into other units and posing a risk of extinction to the species due to changes in flow regime, habitat, water quality, water quantity, and stochastic events such as drought. These impoundments accumulate nutrients and undesirable fish species that could propose threats to vermilion darters and the species' habitat. Other threats to the
Unit 2 includes 0.7 km (0.4 mi) of Dry Branch from the bridge at Glenbrook Road downstream to the confluence with Beaver Creek.
Almost all of the 0.7 km (0.4 mi) or close to 100 percent of this area is privately owned. Less than 1 percent of the area is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements.
Dry Branch provides supplemental water quantity to Turkey Creek proper (Unit 1) and provides connectivity to additional bottom substrate habitat and possible spawning sites (PCEs 1, 3, and 4). One of the three known spawning sites for the species is located within the confluence of this reach (PCE 1 and 4) and Beaver Creek.
Threats to the vermilion darter and its habitat at Dry Branch that may require special management and protection of PCEs 1, 3, and 4 include the potential of: urbanization activities (such as channel modification for flood control, impoundments, gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to construction of impoundments, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, gas and water easements, bridge construction, culvert installation, stormwater management, and other watershed and floodplain disturbances that release sediments or nutrients into the water.
Unit 3 includes 1.0 km (0.6 mi) of Beaver Creek from the confluence with the unnamed tributary to Beaver Creek downstream to the confluence with Turkey Creek.
Almost 0.9 km (0.6 mi), or 94 percent of this area is privately owned. The remaining 0.1 km (< 0.1 mi), or 6 percent is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements.
Beaver Creek supports populations of vermilion darters, and provides supplemental water quantity to Turkey Creek proper (PCEs 1 and 2). The reach also contains adequate bottom substrate for vermilion darters to use in spawning, foraging, and other life processes (PCE 4). Beaver Creek makes available additional habitat and spawning sites, and offers connectivity with other vermilion darter populations within Turkey Creek, Dry Branch, and the unnamed tributary to Beaver Creek (PCEs 1 and 4).
Threats to the vermilion darter and its habitat at Beaver Creek that may require special management of PCEs 1, 2, and 4 include the potential of: urbanization activities (such as channel modification for flood control, impoundments, gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, gas and water easements, bridge construction, culvert installation, stormwater management, and other watershed and floodplain disturbances that release sediments or nutrients into the water.
Unit 4 includes 0.6 km (0.4 mi) of Dry Creek from Innsbrook Road downstream to the confluence with Turkey Creek.
Almost 0.6 km (0.4 mi), or 100 percent of this area is privately owned.
Dry Creek supports populations of vermilion darters and provides supplemental water quantity to Turkey Creek proper (PCEs 1 and 2). The reach also contains adequate bottom substrate for vermilion darters to use in spawning, foraging, and other life processes (PCE 4). Dry Creek makes available additional habitat and spawning sites, and offers connectivity with vermilion darter populations in Turkey Creek (PCE 1).
There are two impoundments in Dry Creek (Blanco and Mayden 1999, pp. 56, 62) which limit the range and expansion of the species within the unit and increases the risk of extinction due to changes in flow regime, habitat or water quality, water quantity, and stochastic events such as drought. These impoundments amass nutrients and undesirable fish species that could propose threats to vermilion darters and to its habitat. Threats that may require special management and protection of PCEs include: urbanization activities (such as channel modification for flood control and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to future impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, gas and water easements, bridge construction, culvert installation, stormwater management, and other watershed and floodplain disturbances that release sediments or nutrients into the water.
Unit 5 includes 3.7 km (2.3 mi) of the unnamed tributary of Beaver Creek from the Section 12/11 (T16S, R2W) line, as taken from the U.S. Geological Survey 7.5 topographical map (Pinson quadrangle), downstream to its confluence with Beaver Creek.
Almost 3.3 km (2.1 mi), or 89 percent of this area is privately owned. The remaining 0.4 km (0.2 mi), or 11 percent is publicly owned by the City of Pinson or Jefferson County in the form of bridge crossings and road easements.
The unnamed tributary to Beaver Creek supports populations of vermilion darters and provides supplemental water quantity to Turkey Creek proper (PCEs 1 and 2). The unnamed tributary to Beaver Creek has been intensely geomorphically changed by man over the last 100 years. The majority of this reach has been modified for flood control, as it runs parallel to Highway 79. There are several bridge crossings, and the reach has a history of industrial uses along the bank. However, owing to the groundwater effluent that constantly supplies this reach with clean and flowing water (PCEs 2 and 3), the reach has been able to cleanse itself and maintain a population of vermilion darters at several locations. One of the three known spawning sites for the species is located within this reach (PCE 4).
The headwaters of the unnamed tributary to Beaver Creek is
Threats to the vermilion darter and its habitat that may require special management and protection of PCEs are: urbanization activities (such as channel modification for flood control, and gravel extraction) that could result in increased bank erosion; significant changes in the existing flow regime due to future impoundment construction, water diversion, or water withdrawal; significant alteration of water quality; and significant changes in stream bed material composition and quality as a result of construction projects and maintenance activities, off-road vehicle use, gas and water easements, bridge construction, culvert installation, stormwater management, and other watershed and floodplain disturbances that release sediments or nutrients into the water.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the Fifth and Ninth Circuits Courts of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see
Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). The conservation recommendations in a conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that:
• Can be implemented in a manner consistent with the intended purpose of the action,
• Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
• Are economically and technologically feasible, and
• Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request to reinitiate of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
Federal activities that may affect the vermilion darter or its designated critical habitat will require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or would retain its current ability for the PCEs to be functionally established. Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for the vermilion darter.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities
Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore result in consultation for the vermilion darter include, but are not limited to:
(1) Actions that would alter the geomorphology of the stream habitats. Such activities could include, but are not limited to, instream excavation or dredging, impoundment, channelization, and discharge of fill materials. These activities could cause aggradation or degradation of the channel bed elevation or significant bank erosion and could result in entrainment or burial of this species, as well as other direct or cumulative adverse effects to this species and its life cycle.
(2) Actions that would significantly alter the existing flow regime. Such activities could include, but are not limited to, impoundment, water diversion, water withdrawal, and hydropower generation. These activities could eliminate or reduce the habitat necessary for growth and reproduction of the vermilion darter.
(3) Actions that would significantly alter water chemistry or water quality (for example, changes to temperature or pH, introduced contaminants, or excess nutrients). Such activities could include, but are not limited to, the release of chemicals, biological pollutants, or heated effluents into surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions that are beyond the tolerances of the species and result in direct or cumulative adverse effects on the species and its life cycle.
(4) Actions that would significantly alter stream bed material composition and quality by increasing sediment deposition or filamentous algal growth. Such activities could include, but are not limited to, construction projects; road and bridge maintenance activities; livestock grazing; timber harvest; off-road vehicle use; underground gas, water, and electric lines; and other watershed and floodplain disturbances that release sediments or nutrients into the water. These activities could eliminate or reduce habitats necessary for the growth and reproduction of the species by causing excessive sedimentation and burial of the species or their habitats, or nutrification leading to excessive filamentous algal growth. Excessive filamentous algal growth can cause extreme decreases in nighttime dissolved oxygen levels through vegetation respiration, and cover the bottom substrates and the interstitial spaces between cobble and gravel.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resource management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
• An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
• A statement of goals and priorities;
• A detailed description of management actions to be implemented to provide for these ecological needs; and
• A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors.
We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at the
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense (DOD) where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the vermilion darter are not owned or managed by the DOD, and we therefore anticipate no impact to national security. There are no areas proposed for exclusion based on impacts to national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in
In preparing this proposed rule, we have determined that there are currently no conservation plans or other management plans for the species, and the proposed designation does not include any Tribal lands or trust resources. We anticipate no impact to Tribal lands, partnerships, or management plans from this proposed critical habitat designation. There are no areas proposed for exclusion from this proposed designation based on other relevant impacts.
Notwithstanding these decisions, as stated under the
In accordance with our joint policy published in the
We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if we receive any requests for hearings. We must receive your request for a public hearing by the date listed in the
The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
At this time, we lack the specific information necessary to provide an adequate factual basis for determining the potential incremental regulatory effects of the designation of critical habitat for the vermilion darter to either develop the required RFA finding or provide the necessary certification statement that the designation will not have a significant impact on a substantial number of small business entities. On the basis of the development of our proposal, we have identified certain sectors and activities that may potentially be affected by a designation of critical habitat for the vermilion darter. These sectors include industrial development and urbanization along with the accompanying infrastructure associated with such projects such as road, stormwater drainage, bridge and culvert construction and maintenance. We recognize that not all of these sectors may qualify as small business entities. However, while recognizing that these sectors and activities may be affected by this designation, we are collecting information and initiating our analysis to determine (1) which of these sectors or activities are or involve small business entities and (2) what extent the effects are related to the vermilion darter being listed as an endangered species under the Act (baseline effects) or whether the effects are attributable to the designation of critical habitat (incremental). We believe that the potential incremental effects resulting from a designation will be small. As a consequence, following an initial evaluation of the information available to us, we do not believe that there will be a significant impact on a substantial number of small business entities resulting from this designation of critical habitat for the vermilion darter. However, we will be conducting a thorough analysis to determine if this may in fact be the case. As such, we are requesting any specific economic information related to small business entities that may be affected by this designation and how the designation may impact their business. Therefore, we defer our RFA finding on this proposal designation until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and E.O. 12866.
As discussed above, this draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not jeopardize the continued existence of the species, or destroy or adversely modify critical habitat under section 7 of the Act. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would listing these species or designating critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b) We do not believe that this rule would significantly or uniquely affect small governments because the vermilion darter primarily occurs in privately owned stream channels. As such, a Small Government Agency Plan is not required. We will, however, further evaluate this issue as we conduct our economic analysis and revise this assessment if appropriate.
In accordance with E. O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the vermilion darter in a takings implications assessment. The takings implications assessment concludes that this designation of critical habitat for the vermilion darter does not pose significant takings implications.
In accordance with E. O. 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with appropriate State resource agencies in Alabama. The critical habitat designation may have some benefit to this government in that the areas that contain the features essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary to the conservation of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the physical and biological features within the designated areas to assist the public in understanding the habitat needs of the vermilion darter.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E. O. 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
We have determined that there are no tribal lands occupied at the time of listing that contain the features essential for the conservation and no tribal lands that are unoccupied areas that are essential for the conservation of the vermilion darter. Therefore, we have not proposed designation of critical habitat for the vermilion darter on Tribal lands.
On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this rule to significantly affect energy supplies, distribution, or use. Although two of the proposed units are below hydropower reservoirs, current and proposed operating regimes have been deemed adequate for the species, and therefore their operations will not be affected by the proposed designation of critical habitat. All other proposed units are remote from energy supply, distribution, or use activities. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
A complete list of all references cited in this rulemaking is available on the Internet at
The primary authors of this package are staff members of the Mississippi Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2.In § 17.11(h), revise the entry for “Darter, vermilion” under FISHES in the List of Endangered and Threatened Wildlife to read as follows:
(h) * * *
3. In § 17.95(e), add an entry for “Vermilion Darter (
(e) Fishes
(1) The critical habitat units are depicted for Jefferson County, Alabama, on the map below.
(2) The primary constituent elements (PCEs) of critical habitat for the vermilion darter are the habitat components that provide:
(i) Geomorphically stable stream bottoms and banks (stable horizontal dimension and vertical profile) in order to maintain bottom features (riffles, runs, and pools) and transition zones between bottom features, to continue appropriate habitat to maintain essential riffles, runs, and pools, to promote connectivity between spawning, foraging, and resting sites, and to maintain gene flow throughout the population.
(ii) Instream flow regime with an average daily discharge over 50 cubic feet per second inclusive of both surface runoff and groundwater sources (springs and seepages).
(iii) Water quality with temperature not exceeding 26.7 °C (80 °F), dissolved oxygen 6.0 milligrams or greater per liter, turbidity of an average monthly reading of 10 NTU and 15mg/l (Nephelometric Turbidity Units; units used to measure sediment discharge; Total Suspended Solids measured as mg/l of sediment in water) or less; and a specific conductance (ability of water to conduct an electric current, based on dissolved solids in the water) of no greater than 225 micro Siemens per centimeter at 26.7 °C (80 °F).
(iv) Bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand and gravel, with low amounts of fine sand and sediments within the interstitial spaces of the substrates.
(3) Critical habitat does not include manmade structures existing on the effective date of this rule and not containing one or more of the PCEs, such as buildings, bridges, aqueducts, airports, and roads, and the land on which such structures are located.
(4) Critical habitat unit map. The map was developed from USGS 7.5' quadrangles. Critical habitat unit upstream and downstream limits were then identified by longitude and latitude using decimal degrees.
(5)
(6) Unit 1: Turkey Creek, Jefferson County, Alabama.
(i) Unit 1 includes the channel in Turkey Creek from Shadow Lake Dam (086° 38' 22.50” W long., 033° 40' 44.78” N lat.) downstream to the Section 13/14 (T15S, R2W) line (086° 42' 31.81” W long., 033° 43' 23.61” N lat.).
(ii) Map of Unit 1 is provided at paragraph (10)(ii) of this entry.
(7) Unit 2: Dry Branch, Jefferson County, Alabama.
(i) Unit 2 includes the channel in Dry Branch from the bridge at Glenbrook Road (086° 41' 6.05” W long., 033° 41' 10.65” N lat) downstream to the confluence with Beaver Creek (86° 41' 17.39” W long., 033° 41' 26.94” N lat.).
(ii) Map of Unit 2 is provided at paragraph (10)(ii) of this entry.
(8) Unit 3: Beaver Creek, Jefferson County, Alabama.
(i) Unit 3 includes the channel of Beaver Creek from the confluence with the unnamed tributary to Beaver Creek (086° 41' 17.54” W long., 033° 41' 26.94” N lat.) downstream to its confluence with Turkey Creek (086° 41' 9.16” W long., 033° 41' 55.86 N lat.).
(ii) Map of Unit 3 is provided at paragraph (10)(ii) of this entry.
(9) Unit 4: Dry Creek, Jefferson County, Alabama.
(i) Unit 4 includes the channel of Dry Creek, from Innsbrook Road (086° 39' 53.78” W long., 033° 42' 19.11” N lat) downstream to the confluence with Turkey Creek (086° 40' 3.72” W long., 033° 42' 1.39” N lat).
(ii) Map of Unit 4 is provided at paragraph (10)(ii) of this entry.
(10) Unit 5: Unnamed Tributary to Beaver Creek, Jefferson County, Alabama.
(i) Unit 5 includes the channel of the Unnamed Tributary from its confluence with Beaver Creek (086° 41' 17.54” W long., 033° 41' 26.94” N lat.), upstream to the 12/11 (T16S, R2W) section line (086° 42' 31.70” W long., 033° 39' 54.15” N lat.)
(ii) Map of Units 1, 2, 3, 4, and 5 (Map 2) follows:
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482–0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395–7285, or
Notice.
The Department of Commerce (DOC), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on continuing and proposed information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before February 1, 2010.
Direct all written comments to Diana Hynek, Departmental Forms Clearance Officer, Department of Commerce, Room 7845, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via e-mail to
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Anne Neville, National Broadband Mapping Program Director, National Telecommunications and Information Administration (NTIA), Room 4898, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington DC 20230 (or via e-mail to
The purpose of the State Broadband Data and Development (SBDD) Grant Program is to implement the joint goals of the American Recovery and Reinvestment Act of 2009 and the Broadband Data Improvement Act by assisting, through grants, states or their designees in gathering and verifying state-specific data on the availability, speed, location, technology and infrastructure of broadband services. The data will be used to develop publicly available state-wide broadband maps and to help populate the comprehensive and searchable national broadband map that NTIA is required under the Recovery Act to create and make publicly available by February 17, 2011.
Despite the importance of broadband to the U.S. economy, information about broadband availability is currently lacking. The data collected will provide critical information for grant-making, regulatory and policy-making efforts, improve the quality of State-level broadband information, and help ensure map accuracy. The national broadband map will improve market efficiency by providing important information to consumers about broadband consumption options and will enable investors to make better strategic choices about network expansion. The national broadband map will also directly aid in the development of a faster, more extensive broadband infrastructure to reach a greater number of Americans, particularly in unserved and underserved areas.
On July 8, 2009, NTIA issued the Notice of Funds Availability (NOFA) and Solicitation of Applications setting forth the requirements for the SBDD Grant Program (
Each applicant for program funding submitted an application, on standard OMB-approved forms, proposing data collection through five years and providing five-year budgets. Applicants provided comprehensive descriptions of their plans to obtain and verify required data from all commercial or public providers in their respective states. Data collection and verification methods may vary between applicants and may include online and on-the-ground surveys of providers and the public, Web-enabled data searches, statistical modeling, drive testing of spectrum use and crowd-sourced data reporting. Data must be collected at least semiannually and initial data collection is due on February 1, 2010. On October 5, 2009, NTIA announced that it awarded the first four grants under the SBDD program to fund data collection in California, Indiana, North Carolina, and Vermont.
All reports from awardees will be submitted via the Internet (to allow for efficient posting on the NTIA Web site and public accessibility).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents,
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection. Comments will also become a matter of public record.
This is a decision consolidated pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5 p.m. in Room 3705, U.S. Department of Commerce, 14th and Constitution Avenue., NW., Washington, DC.
Import Administration, International Trade Administration, Department of Commerce.
Victoria Cho at (202) 482–5075, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230.
On August 26, 2008, the U.S. Department of Commerce (Department) published a notice of initiation of the administrative review of the antidumping duty order on certain pasta from Italy, covering the period July 1, 2007, to June 30, 2008.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (Act), requires the Department to issue the final results of a review within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to a maximum of 180 days.
We determine that it is not practicable to complete the final results of this review within the original time limit because the Department is considering modifying the model-match methodology, which is a complex issue that requires additional time to adequately analyze. Therefore, the Department is fully extending the final results. The final results are now due not later than February 2, 2010.
This extension is in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) published its preliminary results of administrative review of the antidumping duty order on certain lined paper products (“CLPP”) from the People's Republic of China (“PRC”) on July 24, 2009. The period of review (“POR”) is September 1, 2007, through August 31, 2008.
Joy Zhang or Victoria Cho, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–1168 or (202) 482–5075, respectively.
On July 24, 2009, the Department published its preliminary results of the second administrative review.
The POR is September 1, 2007, through August 31, 2008.
The scope of this order includes certain lined paper products, typically school supplies (for purposes of this scope definition, the actual use of or labeling these products as school supplies or non-school supplies is not a defining characteristic) composed of or including paper that incorporates straight horizontal and/or vertical lines on ten or more paper sheets (there shall be no minimum page requirement for looseleaf filler paper) including but not limited to such products as single- and multi-subject notebooks, composition books, wireless notebooks, looseleaf or glued filler paper, graph paper, and laboratory notebooks, and with the smaller dimension of the paper measuring 6 inches to 15 inches (inclusive) and the larger dimension of the paper measuring 8
Specifically excluded from the scope of this order are:
• Unlined copy machine paper;
• Writing pads with a backing (including but not limited to products commonly known as “tablets,” “note pads,” “legal pads,” and “quadrille pads”), provided that they do not have a front cover (whether permanent or removable). This exclusion does not apply to such writing pads if they consist of hole-punched or drilled filler paper;
• Three-ring or multiple-ring binders, or notebook organizers incorporating such a ring binder provided that they do not include subject paper;
• Index cards;
• Printed books and other books that are case bound through the inclusion of binders board, a spine strip, and cover wrap;
• Newspapers;
• Pictures and photographs;
• Desk and wall calendars and organizers (including but not limited to such products generally known as “office planners,” “time books,” and “appointment books”);
• Telephone logs;
• Address books;
• Columnar pads & tablets, with or without covers, primarily suited for the recording of written numerical business data;
• Lined business or office forms, including but not limited to: pre-printed business forms, lined invoice pads and paper, mailing and address labels, manifests, and shipping log books;
• Lined continuous computer paper;
• Boxed or packaged writing stationary (including but not limited to products commonly known as “fine business paper,” “parchment paper,” and “letterhead”), whether or not containing a lined header or decorative lines;
• Stenographic pads (“steno pads”), Gregg ruled (“Gregg ruling” consists of a single- or double-margin vertical ruling line down the center of the page. For a six-inch by nine-inch stenographic pad, the ruling would be located approximately three inches from the left of the book.), measuring 6 inches by 9 inches;
Also excluded from the scope of this order are the following trademarked products:
• Fly
• Zwipes
• FiveStar®Advance
FiveStar Flex
All issues raised in the case and rebuttal briefs by parties in this review are addressed in the memorandum from John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Carole A. Showers, Acting Deputy Assistant Secretary for Policy and Negotiations, Issues and Decisions for the Final Results of the Second Administrative Review of the Antidumping Duty Order on Certain Lined Paper Products from the People's Republic of China, dated November 21, 2009 (“Issues and Decision Memorandum”), which is hereby adopted by this notice. A list of the issues which parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document which is on file in the Central Records Unit, Room 1117, of the main Department building, and is accessible on the Web at
Based on the comments received from the interested parties, we have made no changes to the
Section 776(a) of the Act provides that, the Department shall apply “facts otherwise available” if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
As discussed in the
In proceedings involving non-market economy (“NME”) countries, there is a rebuttable presumption that all companies within that country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of subject merchandise in an NME country this single rate unless an exporter demonstrates that it is sufficiently independent so as to be entitled to a separate rate. Exporters can demonstrate this independence through the absence of both de jure and de facto governmental control over export activities.
In the
Additionally, because we determined that Watanabe is part of the PRC-wide entity, the PRC-wide entity is under review. Pursuant to section 776(a) of the Act, we further find that because the PRC entity (including Watanabe) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using the facts otherwise available on the record. Moreover, by failing to respond to the Department's requests for information, we find that the PRC-wide entity has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information in this proceeding, within the meaning of section 776(b) of the Act. Therefore, an adverse inference is warranted in selecting from the facts otherwise available.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any other information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Generally, the Department finds that selecting the highest rate from any segment of the proceeding as AFA is
As AFA, we have assigned to the PRC-wide entity a rate of 258.21 percent, from the investigation of CLPP from the PRC, which is the highest rate on the record of all segments of this proceeding.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise.
The AFA rate selected here is from the investigation. This rate was calculated based on information contained in the petition, which was corroborated for the final determination. No additional information has been presented in the current review which calls into question the reliability of the information.
We determine that the following margin exists for the period September 1, 2007, through August 31, 2008:
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. We will instruct CBP to liquidate Watanabe's appropriate entries at the PRC-wide rate of 258.21 percent.
The following cash deposit requirements will be effective upon publication of the notice of final results of the administrative review for all shipments of CLPP from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) For previously reviewed or investigated companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (2) for all other PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash-deposit rate will be PRC-wide rate of 258.21 percent; and (3) for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results and notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
December 3, 2009.
Joseph Shuler or Matthew Jordan, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–1293 and (202) 482–1540, respectively.
On October 6, 2009, the Department of Commerce (“the Department”) initiated an investigation of certain seamless carbon and alloy steel standard, line, and pressure pipe from the People's Republic of China (“PRC”).
Under section 703(c)(1)(B) of the Tariff Act of 1930, as amended (the “Act”), the Department may extend the period for reaching a preliminary determination in a countervailing duty investigation until no later than the 130
As the Department is aware, Section 703(c)(2) of the Act and 19 CFR 351.205(f) state that if the Department postpones the preliminary determination, it will notify all parties to the proceeding no later than 20 days prior to the scheduled date of the preliminary determination. The Department acknowledges that it inadvertently missed this deadline. We issued questionnaires to the respondents in this case on November 9, 2009. The due date for these questionnaires is December 16, 2009, which is after the unextended preliminary determination date. While the Department intended to extend the preliminary determination due date when we issued the questionnaire, due to an administrative oversight we did not complete the extension notice at that time.
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f).
Import Administration, International Trade Administration, Department of Commerce.
Myrna Lobo or Justin Neuman, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14
On October 13, 2009, the Department of Commerce (the Department) initiated the countervailing duty investigation of certain coated paper from Indonesia.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a countervailing duty investigation within 65 days after the date on which the Department initiated the investigation. However, the Department may postpone making the preliminary determination until no later than 130 days after the date on which the administering authority initiated the investigation if, among other reasons, the petitioner makes a timely request for an extension pursuant to section 703(c)(1)(A) of the Act. In the instant investigation, the petitioners, Appleton Coated LLC, NewPage Corporation, S.D. Warren Company d/b/a Sappi Fine Paper North America, and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, made a timely request on November 19, 2009, requesting a postponement of the preliminary countervailing duty determination to 130 days from the initiation date.
Therefore, pursuant to the discretion afforded the Department under 703(c)(1)(A) of the Act and because the Department does not find any compelling reason to deny the request, we are extending the due date for the preliminary determination to no later than 130 days after the date on which this investigation was initiated (
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).
This notice inviting applications is open to qualified applicants to serve the Region 3 area only.
On July 10, 2009, we published a Notice Inviting Applications for New Awards for FY 2009 in the
Dates:
This priority is:
Over the last four decades, the Office of Special Education Programs (OSEP) has supported Regional Resource Centers to provide TA that is targeted to meet State-specific needs related to meeting the program requirements under Parts B and C of IDEA.
Historically, each RRC functioned independently, serving primarily as a TA provider to State educational agencies (SEAs) in the RRC's region helping the SEAs address self-identified needs related to providing services to children with disabilities. In 1998, RRCs' traditional role as TA providers expanded when they also began serving as brokers of TA, linking SEAs and local educational agencies (LEAs) to relevant OSEP-funded TA centers. Over time, and as OSEP developed its monitoring of Part C programs and issued monitoring reports from 1998 through 2003, RRCs began providing TA in their respective regions to the State Part C lead agencies (LAs).
When IDEA was last reauthorized in 2004, the increased general supervision responsibilities of SEAs and LAs under Parts B and C, respectively, also increased the need for general supervision support and collaboration among RRCs and other OSEP-funded TA Centers (
Additionally, sections 616 and 642 of IDEA require each SEA and LA to conduct many activities annually. Each SEA and LA must submit an Annual Performance Report (APR) to the Secretary on the State's progress in meeting its targets in each of the priority areas under Parts B and C of IDEA. There are 20 priority indicators under Part B (including early childhood transition, postsecondary transition, graduation, and dropout prevention) and 14 priority indicators under Part C (including provision of early intervention services in the natural environment, timely provision of services, timely evaluation, and early childhood transition). OSEP issues annual letters of determination and response tables for each State under Parts B and C of IDEA based in large part on the State's APR data in each of these priority indicator areas.
In turn, SEAs must monitor and evaluate LEAs' implementation of Part B, and State LAs must monitor and
The Department first issued its annual determinations under sections 616 and 642 of IDEA in 2007 and made one of the following determinations for each State: (1) The State meets IDEA requirements, (2) the State needs assistance, or (3) the State needs intervention. Under section 616(e)(1) of IDEA, when conducting its second annual determinations in 2008, the Department was required to take enforcement actions for those States determined to be in “needs assistance” for two consecutive years. One of those enforcement options was advising a State of the availability of TA, including the resources of the RRCs and the need to utilize such TA. In 2008, the Department advised 25 Part B SEAs and 17 Part C LAs determined to be in “needs assistance” for two consecutive years of the requirement to access TA under section 616(e)(1)(A) of IDEA. In 2009, the Department took specific enforcement actions for those States determined to be in “needs intervention” for three consecutive years, which may include the development of an improvement plan or corrective action plan. These enforcement options will require continued and additional TA support of SEAs and State LAs.
In addition, the American Recovery and Reinvestment Act of 2009 (ARRA), Public Law 111–5, identifies four education reform areas that the Secretary considers to be central to improving the results for all students, including students with disabilities. These reform areas include: (1) Implementing rigorous college- and career-ready standards and assessments; (2) improving the collection and use of data; (3) improving teacher effectiveness; and (4) supporting the struggling schools. These four ARRA reform areas directly align with the SPP priority indicators and the SPP targets. The following Web site provides more information on ARRA:
To ensure that RRCs are available to meet these increased TA needs, OSEP has determined that new funding is needed to support consistent and collaborative work between the six regional RRCs while addressing the increased SEA and LA general supervision responsibilities under Parts B and C of IDEA.
The purpose of this priority is to fund one cooperative agreement to support the operation of an RRC in Region 3 that will collaborate with the five other RRCs to provide coordinated and research-based TA to SEAs and LAs to help them: (1) Meet Federal accountability requirements under IDEA; (2) implement systems of general supervision that improve results and functional outcomes for children with disabilities; (3) work with OSEP-funded TA centers, as appropriate, to develop, identify, and implement evidence-based tools and practices to increase the likelihood that SEAs and LAs will meet their SPP targets in the priority areas described in section 616(a)(3), such as providing FAPE in the LRE, early childhood transition, secondary transition, postsecondary outcomes, graduation, and dropout prevention; and (4) develop and implement strategies that address the four education reform areas and other critical goals that align with the indicators established under IDEA.
The Secretary establishes the following geographic regions for the RRCs:
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in this priority. All projects funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
(a) A logic model for the RRC that depicts, at a minimum, the goals, activities, outputs, and outcomes of the proposed RRC. A logic model communicates how the RRC will achieve its outcomes and provides a framework for both the formative and summative evaluations of the RRC;
The following Web site provides more information on logic models and lists multiple online resources:
(b) A plan to implement the activities described in the
(c) A plan, linked to the proposed project's logic model, for a formative evaluation of the proposed project's activities. The plan must describe how the formative evaluation will use clear performance objectives to ensure continuous improvement in the operation of the proposed project, including objective measures of progress in implementing the project and ensuring the quality of products and services;
(d) A budget for a summative evaluation to be conducted by an independent third party;
(e) A budget for attendance at the following:
(1) A one day kick-off meeting to be held in Washington, DC, within four weeks after receipt of the award, and an annual two-day planning meeting held in Washington, DC, with the OSEP Project Officer and the other five OSEP-funded RRCs during each subsequent year of the project period. The initial kick-off meeting must allow time for the RRC to be briefed on the action plan that was collectively started in October 2009 by the other five RRCs to address how the six RRCs will share resources when appropriate (
(2) A three-day Project Directors' Conference in Washington, DC, during each year of the project period.
(3) A four-day Technical Assistance and Dissemination Conference in Washington, DC, during each year of the project period.
(4) Four two-day trips annually to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP;
(f) A line item in the proposed budget that will support the cost, shared among all of the RRCs when established, for hiring, at a minimum, one full-time coordinator (1 FTE) who will manage the collaborative work of the RRCs; and
Over the last two decades the RRCs received direct support (
(g) A line item in the proposed budget for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed RRCs' shared project activities, as those needs are identified in consultation with OSEP.
With approval from the OSEP Project Officer, the RRC must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period.
The RRC, in collaboration with the other five RRCs, must—
(a) During the first year of the project conduct a systematic review of the former RRCs and other OSEP-funded TA Centers, as appropriate, that—
(1) Analyzes existing data (e.g., data on previously developed scopes of work, tools, products, and staffing) collected on the nature of the TA provided and its evidence-based; and
(2) By the end of year one, produces a summary report regarding the most effective types of TA and the best practices for implementing effective TA in SEAs and LAs; and
(b) Conduct an annual review of—
(1) Part B and Part C SPPs and APRs to evaluate States' progress in meeting their targets in each of the priority areas under IDEA; and
(2) OSEP letters of determination and response tables, including letters of determination and response tables of States determined to be in “needs assistance” for two consecutive years and States determined to be in “needs intervention” for three consecutive years, in order to develop an action plan for supporting SEAs and LAs in their development of improvement and corrective action plans.
The RRC must—
(a) Collaborate and communicate on an ongoing basis with the other five RRCs, the other OSEP-funded TA&D Centers, and the other centers funded by the Department's Office of Elementary and Secondary Education (
(b) In collaboration with the other RRCs and OSEP-funded TA Centers, as appropriate—
(1) Develop action plans and activities based on OSEP-identified priorities,
(2) Develop TA tools and products related to SPP and APR requirements and evaluate the effectiveness of the implementation of these tools and products through annual assessments;
(3) Provide coordinated and research-based TA to SEAs and LAs to help them establish and implement strategies that address the four goals outlined in the ARRA and that are aligned with the indicators established under IDEA and other critical priorities related to improving outcomes for children with disabilities such as developing seamless, high-quality early childhood programs; scaling up successful models and strategies; and helping more students enter and complete college and get jobs; and
(4) Assist SEAs and LAs in refining and improving State policies, procedures, or both related to the Federal accountability requirements under IDEA; and
(c) Provide coordinated and research-based TA to SEAs and LAs to support them in meeting current IDEA requirements and OSEP initiatives for—
(1) Meeting APR reporting requirements (
(2) Identifying improvement activities and, through annual assessments, determining if the newly identified activities are effective;
(3) Developing and implementing corrective action plans for LEAs and local providers, including implementation of enforcement actions for States in “needs intervention” for three consecutive years; and
(4) Improving general supervision at the SEA and LA level, including improving skills in fiscal management, policy development, practices and procedures, monitoring systems, and the timely correction of noncompliance with IDEA requirements.
The RRC, in collaboration with the other five RRCs, must do the following:
(a) Establish and maintain an advisory committee to review the activities and outcomes of the RRCs' collaborative work and provide programmatic support and advice throughout the project period. The committee must include, but is not limited to, SEA special education directors, Part C coordinators, directors of OESE-funded Regional Comprehensive Centers, and directors of OSEP-funded TA centers. The RRC must submit names of proposed members of the advisory committee to OSEP for approval within four weeks after receipt of the award. These names will be considered along with the names submitted earlier by the other five RRCs. At a minimum, the advisory committee must meet on an annual basis either in Washington, DC, or by electronic means.
(b) Collaborate, on an ongoing basis, with OSEP-funded TA projects, especially those working on SPP indicators and general supervision. This collaboration must include the joint development of products, the coordination of TA services, and the planning and carrying out of TA meetings and events that are addressed in annual work plans.
(c) Participate in, organize, or facilitate, as directed by OSEP, communities of practice (
(d) Submit, prior to developing any new product, whether paper or electronic, through the Proposed Product Review (PPR) system, to the OSEP Project Officer for approval, a proposal describing the content and purpose of the product.
(e) Maintain and upgrade the existing RRCs' Web site portal. (This portal can be found at
(f) Contribute, on an ongoing basis, updated information on the RRCs' services to OSEP's mega database (
(g) Coordinate with the National Dissemination Center for Individuals with Disabilities to develop an efficient and high-quality dissemination strategy that reaches broad audiences. The RRC must report to the OSEP Project Officer the outcomes of these coordination efforts.
(h) Maintain ongoing communication with the OSEP Project Officer through monthly phone conversations, e-mail communication, and monthly reports.
In deciding whether to continue funding the RRC for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), and in addition—
(a) The recommendation of a review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting in Washington, DC, that will be held during the last half of the second year of the project period;
(b) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the RRC; and
(c) The quality, relevance, and usefulness of the RRC's activities and products and the degree to which its activities and products have contributed to changed practice and improved State Parts B and C general supervision systems, SPPs, and APRs.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
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(b) Applicants and grant recipients funded under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.326R.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, the page limit does apply to the application narrative in Part III.
We will reject your application if you exceed the page limit or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition may be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants site, or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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If you choose to submit your application to us electronically, you must use e-Application, accessible through the Department's e-Grants Web site at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• Your participation in e-Application is voluntary.
• You must complete the electronic submission of your grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. E-Application will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The hours of operation of the e-Grants Web site are 6:00 a.m. Monday until 7:00 p.m. Wednesday; and 6:00 a.m. Thursday until 8:00 p.m. Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the SF 424 to the Application Control Center after following these steps:
(1) Print SF 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424.
(4) Fax the signed SF 424 to the Application Control Center at (202) 245–6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2)(a) E-Application is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) E-Application is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
Extensions referred to in this section apply only to the unavailability of e-Application. If e-Application is available, and, for any reason, you are unable to submit your application electronically or you do not receive an automatic acknowledgment of your submission, you may submit your application in paper format by mail or hand delivery in accordance with the instructions in this notice.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326R), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326R), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
Grantees will be required to report information on their project's performance in annual reports to the Department (34 CFR 75.590).
Rex Shipp, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4178, Potomac Center Plaza (PCP), Washington, DC 20202–2550. Telephone: (202) 245–7523.
If you use a TDD, call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
The official version of this document is the document published in the
These priorities are:
School readiness projects that provide age-appropriate educational programs and language skills to three- and four-year-old Indian students to prepare them for successful entry into school at the kindergarten school level.
College preparatory programs for secondary school students designed to increase competency and skills in challenging subject matters, including mathematics and science, to enable Indian students to successfully transition to postsecondary education.
These priorities are:
We award five competitive preference priority points to an applicant that presents a plan for combining two or more of the activities described in section 7121(c) of the ESEA over a period of more than one year.
For
We award five competitive preference priority points to an application submitted by an eligible Indian tribe, Indian organization, or Indian institution of higher education, including a consortium of any of these entities with other eligible entities. An application from a consortium of eligible entities that meets the requirements of 34 CFR 75.127 through 75.129 and includes an Indian tribe, Indian organization, or Indian institution of higher education will be considered eligible to receive the five competitive preference points. These competitive preference points are in addition to the five competitive preference points that may be given under
A consortium agreement, signed by all parties, must be submitted with the application in order for the application to be considered a consortium application. Letters of support do not meet the requirement for a consortium agreement. We will reject any application from a consortium that does not meet this requirement.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
An application from a consortium of eligible entities must meet the requirements of 34 CFR 75.127 through 75.129. An application from a consortium of eligible entities must include a signed consortium agreement with the application. Letters of support do not meet the requirement for a consortium agreement.
Applicants applying in consortium with or as an “Indian organization” must demonstrate eligibility by showing how the “Indian organization” meets all of the criteria outlined in 34 CFR 263.20.
The term “Indian institution of higher education” means an accredited college or university within the United States cited in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note), any other institution that qualifies for funding under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801
2.
3.
1.
To obtain a copy from ED Pubs, write, fax, or call the following: Education Publications Center, P.O. Box 1398, Jessup, MD 20794–1398. Telephone, toll free: 1–877–433–7827. FAX: (301) 470–1244. If you use a telecommunications device for the deaf (TDD), call, toll free: 1–877–576–7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 299A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
• A page is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to the cover sheet; the budget section, including the budget narrative justification; the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section which may include a table of contents.
We will reject your application if you exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants site. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV.6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
Applications for grants under the Demonstration Grants for Indian Children competition, CFDA number 84.299A must be submitted electronically using e-Application, accessible through the Department's e-Grants Web site at:
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• You must complete the electronic submission of your grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. E-Application will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The hours of operation of the e-Grants Web site are 6:00 a.m. Monday until 7:00 p.m. Wednesday; and 6:00 a.m. Thursday until 8:00 p.m. Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgment that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the SF 424 to the Application Control Center after following these steps:
(1) Print SF 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424.
(4) Fax the signed SF 424 to the Application Control Center at (202) 245–6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2) (a) E-Application is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) E-Application is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgment of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to e-Application; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Lana Shaughnessy, U.S. Department of Education, 400 Maryland Avenue, SW., room E231, Washington, DC 20202. FAX: (202) 260–7779.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA Number 84.299A, LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA 84.299A, 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number,
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
We encourage applicants to demonstrate a strong capacity to provide reliable data on these measures in their responses to the selection criteria “Quality of project services” and “Quality of the project evaluation.” All grantees will be expected to submit, as part of their performance report, information with respect to these performance measures.
If you use a TDD, call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1–888–293–6498; or in the Washington, DC, area at (202) 512–1530.
The official version of this document is the document published in the
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3520. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Persons wishing to comments on this information collection should submit comments on February 1, 2010. If you anticipate that you will be
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at (202) 395–5167, or via the Internet at
For additional information about the information collection(s) send an e–mail to
OMB Control No: 3060–0286.
Title: Section 80.302, Notice of Discontinuance, Reduction, or Impairment of Service Involving a Distress Watch.
Form No.: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit, not–for–profit institutions, and state, local or tribal government.
Number of Respondents: 160 respondents; 160 responses.
Estimated Time Per Response: 1 hour.
Frequency of Response: Third party disclosure requirement.
Obligation to Respond: Required to obtain or retain benefits.
Total Annual Burden: 160 hours.
Privacy Act Impact Assessment: N/A. Statutory authority for this information collection is in 47 U.S.C. sections 151–155, 301–309, 3 UST 3450, 3 UST 4726, 12 UST 2377.
Nature and Extent of Confidentiality: There is no need for confidentiality.
Need and Uses: The Commission is submitting this information collection to the Office of Management and Budget (OMB) after this 60 day comment period in order to obtain the full three year clearance from them. There is no change in the third party disclosure requirement. And, there is no change in the Commission's burden estimates.
Section 80.302 requires that when changes occur in the operation of a public coast station which includes discontinuance, relocation, reduction or suspension of a watch required to be maintained on 2182 kHz or 156.800 MHz band, notification must be made by the licensee to the nearest district office of the U.S. Coast Guard as soon as practicable. The notification must include the estimated or known resumption time of the watch.
This notification allows the U.S. Coast Guard to seek an alternate means of providing radio coverage to protect the safety of life and property at sea or object to the planned diminution of service. Once the U.S. Coast Guard is aware that such a situation exists, it is able to inform the maritime community that radio coverage has or will be affected and/or seek to provide coverage of the safety watch via alternate means. When appropriate the U.S. Coast Guard may file a petition to deny any application.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 28, 2009.
Board of Governors of the Federal Reserve System, November 30, 2009.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel-Operating Common Carrier and Ocean Freight Forwarder–Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 milligrams (mg) and 30 mg, were not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for aripiprazole orally disintegrating tablets, 20 mg and 30 mg, if all other legal and regulatory requirements are met.
Nam Kim, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6320, Silver Spring, MD 20993–0002, 301–796–3601.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA sponsors must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. Sponsors of ANDAs do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is generally known as the
Under § 314.161(a)(1) (21 CFR 314.161(a)(1)), the agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness before an ANDA that refers to that listed drug may be approved. FDA may not approve an ANDA that does not refer to a listed drug.
ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, are the subject of approved NDA 21–729 held by Otsuka Pharmaceutical Company, Limited (Otsuka). ABILIFY (aripiprazole) is indicated for the treatment of schizophrenia, for the acute and maintenance treatment of manic and mixed episodes associated with bipolar I disorder, as an adjunctive therapy to either lithium or valproate for the acute treatment of manic and mixed episodes associated with bipolar I disorder, for use as an adjunctive therapy to antidepressants for the treatment of major depressive disorder, for the treatment of irritability associated with autistic disorder, and for the acute treatment of agitation associated with schizophrenia or bipolar I disorder, manic or mixed.
FDA approved the NDA for ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, including the 20-mg and 30-mg strengths, on June 7, 2006. Otsuka has never marketed the 20-mg and 30-mg strengths of ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, and the 20-mg and 30-mg strength orally disintegrating tablets are listed in the “Discontinued Drug Product List” of the Orange Book.
Rakoczy Molino Mazzochi Siwik LLP submitted a citizen petition dated May 29, 2008 (Docket No. FDA–2008–P–0330), under 21 CFR 10.30, requesting that the agency (1) determine that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were discontinued from sale for reasons unrelated to safety and efficacy and (2) accept ANDAs for aripiprazole orally disintegrating tablets, 20 mg and 30 mg, and determine that such ANDAs are eligible for approval if all other legal and regulatory requirements are met. After considering the citizen petition and reviewing agency records, FDA has determined that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were not withdrawn from sale for reasons of safety or effectiveness. To date, Otsuka has not marketed ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg. In previous instances (see, e.g., 72 FR 9763, March 5, 2007; 61 FR 25497, May 21, 1996), the agency has determined that, for purposes of §§ 314.161 and 314.162, never marketing an approved drug product is equivalent to withdrawing the drug from sale.
The petitioner identified no data or other information suggesting that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were withdrawn from sale as a result of safety or effectiveness concerns. FDA has reviewed its files for records concerning the withdrawal of ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg. There is no indication that Otsuka's decision not to market ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, commercially is a function of safety or effectiveness concerns, and no information has been submitted to the docket concerning the reason for which ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were withdrawn from sale. FDA's independent evaluation of relevant information has uncovered nothing that would indicate that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were withdrawn from sale for reasons of safety or effectiveness.
For the reasons outlined in this document, FDA has determined that ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, were not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will continue to list ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to ABILIFY DISCMELT (aripiprazole) orally disintegrating tablets, 20 mg and 30 mg, may be approved by the agency as long as they meet all relevant legal and regulatory requirements for approval of ANDAs. If FDA determines that labeling for these drug products should be revised to meet current standards, the agency will advise ANDA applicants to submit such labeling.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing its determination that MESANTOIN (mephenytoin) Tablets, 100 milligrams (mg), was not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to approve abbreviated new drug applications (ANDAs) for mephenytoin tablets, 100 mg, if all other legal and regulatory requirements are met.
Nikki Mueller, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6312, Silver Spring, MD 20993–0002, 301–796–3601.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98–417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs.
Schiff & Co. submitted a citizen petition dated October 16, 2008 (Docket No. FDA–2008–P–0560), under 21 CFR 10.30, requesting that the agency determine whether MESANTOIN (mephenytoin) Tablets, 100 mg, was withdrawn from sale for reasons of safety or effectiveness. MESANTOIN (mephenytoin) Tablets, 100 mg, is the subject of NDA 6–008, held by Novartis and initially approved on October 23, 1946. MESANTOIN is indicated to control grand mal, local, Jacksonian, and psychomotor seizures in patients who have been refractory to less toxic anticonvulsants. In a letter dated January 13, 2000, Novartis notified FDA that MESANTOIN (mephenytoin) Tablets, 100 mg, was being discontinued and FDA moved the drug product to the “Discontinued Drug Product List” section of the Orange Book.
FDA has reviewed its records and, under § 314.161, has determined that MESANTOIN (mephenytoin) Tablets, 100 mg, was not withdrawn from sale for reasons of safety or effectiveness. The petitioner identified no data or other information suggesting that MESANTOIN (mephenytoin) Tablets, 100 mg, was withdrawn for reasons of safety or effectiveness. FDA has independently evaluated relevant literature and data for possible postmarketing adverse events and has found no information that would indicate that this product was withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will continue to list MESANTOIN (mephenytoin) Tablets, 100 mg, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. ANDAs that refer to MESANTOIN (mephenytoin) Tablets, 100 mg, may be approved by the agency if all other legal and regulatory requirements for the approval of ANDAs are met. If FDA determines that labeling for this drug product should be revised to meet current standards, the agency will advise ANDA applicants to submit such labeling.
The Office of Policy, DHS.
Notice of Cancellation of the Homeland Security Advisory Council Federal Advisory Committee Meeting.
The meeting of the Homeland Security Advisory Council, scheduled for December 4, 2009 from 3 to 4 p.m. EST is cancelled. Notice of this meeting was published in the November 10, 2009
Contact the HSAC staff at 202–447–3135 or
The HSAC provides independent advice to the Secretary of the Department of Homeland Security to aide in the creation and implementation of critical and actionable policies and capabilities across the spectrum of homeland security operations. The HSAC periodically reports, as requested, to the Secretary, on such matters. Notice of cancellation of this meeting is given under the Federal Advisory Committee Act (FACA), Public Law 92–463, as amended, 5 U.S.C. App.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651–0005.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Application-Permit-Special License Unlading-Lading-Overtime Services (Form 3171). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before January 4, 2010.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the
(2) Evaluate the accuracy of the agencies/components estimate of the burden of The proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Office of Regulations and Rulings, 799 9th Street, NW., 7th Floor, Washington, DC 20229–1177, at 202–325–0265.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; e-mail
Howard Mayfield, Deputy Director, Office of Multifamily Asset Management, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; telephone (202) 402–2558 (this is not a toll free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the Secretary, Interior.
Notice of proposed change to the Departmental Manual; request for comments.
The Department of the Interior (Department) proposes to
Submit comments by January 4, 2010.
You may submit comments by any of the following methods. Please reference 516 DM 7 in your message. See also “Public availability of comments” under Procedural Requirements below.
• E-mail
• Fax: 202–208–3698. Identify with “516 DM 7”.
• Mail or hand-carry comments to the Department of the Interior, Office of Hawaiian Relations, Room Number 3543, Main Interior Building, 1849 C Street, NW., Washington, DC 20240. Please reference “516 DM 7” in your comments and also include your name and return address.
• Public availability of comments—before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Ka‘i‘ini Kaloi, Director; Office of Hawaiian Relations; 1849 C Street, NW.; Washington, DC 20240. Telephone: 202–513–0712. E-mail:
Congress passed the Hawaiian Homes Commission Act (HHCA) in 1921, creating the Commission and designating approximately 200,000 acres available to rehabilitate the indigenous Hawaiian population by providing them with access to farm and homestead land. Under section 204(3) of the HHCA, ch. 42, 42 Stat. 110 (1921), all available lands were to become Hawaiian Home lands under control of the Commission, provided that “such lands should assume the status of the Hawaiian Home lands until the Commission, with the approval of the Secretary of the Interior, makes the selection and gives notice thereof to the Commissioner of Public Lands.” 42 Stat. 110 (1921).
Thirty-three years later, Congress passed the Act of June 18, 1954, ch. 319, 68 Stat. 262, which amended the HHCA, adding new subsection 204(4) “to permit the [Commission] to exchange available lands as designated by the Act, for public land of equal value.” H.R. Rep. No. 1517, 83d Cong., 2d Sess. (1954); S. Rep. No. 1486, 83d Cong., 2d Sess. 2 (1954). New section 204(4) provided that “the Commission may with the approval of the Governor (Governor approval no longer required) and the Secretary of the Interior, in purposes of this Act, exchange title to available lands for land publicly owned, of equal value.” 68 Stat. 262 (1954). Hence, it was clear Congress intended the Commission would not have the authority to consummate any land exchange without secretarial approval.
After Hawaii was admitted to the Union in 1959, the responsibility for the administration of the Hawaiian Home lands was transferred to the State of Hawaii. Section 4 of the Hawaiian Admission Act, Public Law 86–3, 73 Stat. 5 (1959), 48 U.S.C. nt. Prec. § 491 (1982) provides: “[A]s a compact with the United States relating to the management and disposition of the Hawaiian Home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of such State.” Thus, secretarial approval remained necessary before the Commission was empowered to conduct land exchanges.
In 1995, Congress again iterated its intent to have the Secretary provide oversight of land exchanges occurring under the auspices of the HHCA. The Hawaiian Home Lands Recovery Act of 1995 (HHLRA), Public Law 104–42, 109 Stat. 357, gave oversight responsibilities to the Secretary of the Department of Interior to ensure that real property under the HHCA is, among other things, administered in a manner which best serves the interests of the beneficiaries.
The words of section 204(3) of the HHCA make clear that a land exchange is not valid until it has been approved by the Secretary (or his designee), but does not suggest that the Secretary is required to approve every land exchange placed before him. Indeed, the Secretary must at a minimum, satisfy himself that either of the purposes set forth in section 204(3) is met (
1. Regulatory Planning and Review (E.O. 12866).
This document is not a significant policy change and the Office of Management and Budget (OMB) has not reviewed this DM change under E.O. 12866. We have made the assessments required by E.O. 12866 and have determined that this departmental policy:
(1) Will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) Will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) Does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) Does not raise novel legal or policy issues.
2. Regulatory Flexibility Act.
The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
3. Small Business Regulatory Enforcement Fairness Act (SBREFA).
This DM change is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The OMB made the determination that this DM change:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or
4. Unfunded Mandates Reform Act.
This departmental manual change does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
5. Takings (E.O. 12630).
Under the criteria in E.O. 12630, this departmental manual change does not have significant takings implications. A takings implication assessment is not required.
6. Federalism (E.O. 13132).
Under the criteria in E.O. 13132, this DM change does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.
7. Consultation With Indian tribes (E.O. 13175).
Under the criteria in E.O. 13175, we have evaluated this DM change and determined that it has no potential effects on federally recognized Indian tribes since Native Hawaiians are not a federally recognized Indian tribe.
8. National Environmental Policy Act.
The CEQ does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in
9. Paperwork Reduction Act.
This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act is not required.
For the reasons stated in the preamble, the Department proposes to amend its DM by adding a new chapter to provide supplementary requirements for implementing provisions of 516 DM 1 through 4 within the Department's Office of Hawaiian Relations (OHR), as set forth below:
7.1 Purpose. This Chapter provides supplementary requirements for implementing provisions of 516 DM 1 through 6 within the Department's Office of Hawaiian Relations.
7.2 NEPA Responsibility.
A. The Director of the Office of Hawaiian Relations is responsible for NEPA compliance for OHR activities.
B. The Director of the Office of Hawaiian Relations, in conjunction with the Office of Environmental Policy Compliance, provides direction and oversight for environmental activities, including the implementation of NEPA.
C. The OHR may request the Department of Hawaiian Home Lands (DHHL) to assist in preparing NEPA documentation for a proposed action submitted by the Secretary.
7.3 Guidance to DHHL.
A. Actions Proposed by the DHHL requiring OHR or other Federal approval.
(1) The OHR retains sole responsibility and discretion in all NEPA compliance matters related to the proposed action, although the Director of OHR may request the DHHL to assist in preparing all NEPA documentation.
B. Actions proposed by the DHHL not requiring Federal approval, funding, or official actions, are not subject to NEPA requirements.
7.4 Actions Normally Requiring an Environmental Assessment (EA) or Environmental Impact Statement (EIS) if these activities are connected to a land exchange requiring the Secretary's approval.
A. The following actions require preparation of an EA or EIS:
(1) Actions not categorically excluded; or
(2) Actions involving extraordinary circumstances as provided in 43 C.F.R. Part 46.215.
B. Actions not categorically excluded or involving extraordinary circumstances as provided in 43 C.F.R. Part 46.210, will require an EA when:
(1) An EA will be used in deciding whether a finding of no significant impact is appropriate, or whether an EIS is required prior to implementing any action.
(2) The action is not being addressed by an EIS.
C. If an EA is prepared, it will comply with the requirements of 43 CFR part 46 subpart D.
D. The following actions normally require the preparation of an EIS:
(1) Proposed water development projects which would inundate more than 1,000 acres of land, or store more than 30,000 acre-feet of water, or irrigate more than 5,000 acres of undeveloped land.
(2) Construction of a treatment, storage or disposal facility for hazardous waste or toxic substances.
(3) Construction of a solid waste facility.
E. If an EIS is prepared, it will comply with the requirements of 43 CFR part 46 subpart E
7.5 Categorical Exclusion. In addition to the actions listed in the Departmental categorical exclusions specified in section 43 C.F.R. 46.210, the following action is categorically excluded unless any of the extraordinary circumstances in section 43 C.F.R. 46.215 apply, thus requiring an EA or an EIS. This activity is a single, independent action not associated with larger, existing or proposed complexes or facilities.
A. Approval of conveyances, exchanges and other transfers of land or interests in land between DHHL, and an agency of the State of Hawaii, or a Federal agency, where no change in the land use is planned.
Bureau of Land Management, Interior.
Notice of public meeting.
Notice is hereby given, in accordance with Public Laws 92–463 and 94–579, that the California Desert District Advisory Council to the Bureau of Land Management, U.S. Department of the Interior, will participate in a field tour of BLM-administered public lands on Friday, December 11, 2009, from 1 p.m. to 4:30 p.m. and will meet in formal session on Saturday, December 12, from 8 a.m. to 4 p.m. at the Courtyard by Marriott Palm Desert, 74895 Frank Sinatra Drive, Palm Desert, CA 92211. Agenda topics will include
All California Desert District Advisory Council meetings are open to the public. Public comment for items not on the agenda will be scheduled at the beginning of the meeting Saturday morning. Time for public comment may be made available by the Council Chairman during the presentation of various agenda items, and is scheduled at the end of the meeting for topics not on the agenda.
While the meeting is tentatively scheduled to conclude at 4 p.m. on Saturday, it could conclude earlier should the Council conclude its presentations and discussions. Therefore, members of the public interested in a particular agenda item or discussion should schedule their arrival accordingly.
Written comments may be filed in advance of the meeting for the California Desert District Advisory Council, c/o Bureau of Land Management, External Affairs, 22835 Calle San Juan de Los Lagos, Moreno Valley, CA 92553. Written comments also are accepted at the time of the meeting and, if copies are provided to the recorder, will be incorporated into the minutes.
David Briery, BLM California Desert District External Affairs, (951) 697–5220.
United States International Trade Commission.
Scheduling of the final phase of countervailing duty and antidumping investigations.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation No. 701–TA–462 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigations Nos. 731–TA–1156–1158 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized imports of polyethylene retail carrier bags (“PRCBs”) from Vietnam and less-than-fair-value imports of PRCBs from Indonesia, Taiwan, and Vietnam, provided for in subheading 3923.21.00 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Joshua Kaplan (202–205–3184), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
This is notice that on July 16, 2009, Noramco, Inc., Division of Ortho-McNeil, Inc., 500 Swedes Landing Road, Wilmington, Delaware 19801, made application by renewal to the Drug Enforcement Administration (DEA) for registration as an importer of the basic classes of controlled substances listed in schedule II:
The company plans to import the listed controlled substances to manufacture other controlled substances.
As explained in the Correction to Notice of Application pertaining to Rhodes Technologies, 72 FR 3417 (2007), comments and requests for hearings on applications to import narcotic raw material are not appropriate.
As noted in a previous notice published in the
Mine Safety and Health Administration (MSHA), Labor.
Notice of Affirmative Decisions on Petitions for Modification Granted in Whole or in Part.
The Mine Safety and Health Administration (MSHA) enforces mine operator compliance with mandatory safety and health standards that protect miners and improve safety and health conditions in U.S. mines. This
Copies of the final decisions are posted on MSHA's Web site at
Roslyn B. Fontaine, Acting Deputy Director, Office of Standards, Regulations and Variances at 202–693–9475 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine operator may petition and the Secretary of Labor (Secretary) may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) An alternative method exists that will guarantee no less protection for the miners affected than that provided by the standard; or (2) that the application of the standard will result in a diminution of safety to the affected miners.
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
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Mine Safety and Health Administration, Labor.
Notice of petitions for modification of existing mandatory safety standards.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification filed by the parties listed below to modify the application of existing mandatory safety standards published in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before January 4, 2010.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
4.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments. Individuals who submit comments by hand-delivery are required to check in at the receptionist desk on the 21st floor.
Individuals may inspect copies of the petitions and comments during normal business hours at the address listed above.
Barbara Barron, Office of Standards, Regulations and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines that: (1) An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or (2) that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
A copy of each pumps' short circuit survey will be available at the mine site for inspection; (8) the alternative method will not be implemented until miners who have been designated to examine the integrity of seals or locks, verify the short-circuit settings, and proper procedures for examining trailing cables for defects and damage have received the elements of training. The petitioner further states that: (1) Within 60 days after the Proposed Decision and Order becomes final, proposed revisions for approved 30 CFR Part 48 training plan at any of the listed mines will be submitted to the Coal Mine Safety and Health District Manager. The training plan will include: (a) Training in the mining methods and operating procedures for protecting the trailing cables against damage; (b) training in proper procedures for examining the trailing cables to ensure they are in safe operating condition; (c) training in hazards of setting the instantaneous circuit breakers too high to adequately protect the trailing cables; (d) training in how to verify that the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained; and (e) the procedures of 30 CFR 48.3 for approval of proposed revisions to already approved training plans will apply. The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded the miners at Shamrock Coal provided by the existing standard.
Notice of open stakeholder Webcast meeting.
This notice announces an open stakeholder Webcast meeting sponsored by the Grants Policy Committee (GPC) of the U.S. Chief Financial Officers (CFO) Council.
The GPC will hold a Webcast meeting on Thursday, December 10, 2009 from 2–3:30 p.m., Eastern Time. The Webcast will be broadcast live. Relevant meeting materials will be posted on
The GPC December 10th Webcast meeting will be broadcast from and held in Room B–180 of the U.S. Department of Housing and Urban Development (HUD), 451 7th Street, SW., Washington, DC 20410. Seating is limited—the first 35 people to respond, and receive confirmation of the response, can be part of the live audience. Both Federal and non-Federal employees must R.S.V.P. to reserve a seat by contacting Charisse Carney-Nunes at
This Webcast meeting has been made possible by the cooperation of the National Science Foundation, HUD, and the GPC.
(1) Introduction;
(2) American Recovery and Reinvestment Act (ARRA) Reporting Overview, Lessons Learned, and Question and Answer (Q & A);
(3) Government Accountability Office Findings on ARRA Recipient Reporting and Q & A;
(4) Single Audit Pilot on ARRA Funds and Q & A;
(5) Quick GPC Update;
(6) Final Q & A; and
(7) Close.
11 a.m., Wednesday, December 2, 2009.
The agenda has been expanded to include discussion, in open session, of whether to provide audio streaming of the public portion of monthly Commission meetings.
Stephen L. Sharfman, General Counsel, 202–789–6824 or
Postal Service.
Notice of a change in rates of general applicability for competitive products.
This notice sets forth changes in rates of general applicability for competitive products.
Daniel J. Foucheaux, Jr., 202–268–2989.
On September 22, 2009, pursuant to their authority under 39 U.S.C. 3632, the Governors of the Postal Service established prices and classification changes for competitive products. The Governors' Decision and the record of proceedings in connection with such decision are reprinted below in accordance with § 3632(b)(2). Implementing regulations were published in the
Pursuant to our authority under section 3632 of title 39, as amended by the Postal Accountability and Enhancement Act of 2006 (“PAEA”), we establish new prices of general applicability for the Postal Service's shipping services (competitive products), and such changes in classifications as are necessary to define the new prices. The changes are described generally below, with a detailed description of the changes in the attachment. The attachment includes the draft Mail Classification Schedule sections with changes in classification language in legislative format, and new prices displayed in the price charts.
As shown in the nonpublic annex being filed under seal herewith, the changes we establish should enable each competitive product to cover its attributable costs (39 U.S.C. 3633(a)(2)) and should result in competitive products as a whole complying with 39 U.S.C. 3633(a)(3), which, as implemented by 39 CFR 3015.7(c), requires competitive products to contribute a minimum of 5.5 percent to the Postal Service's institutional costs. Accordingly, no issue of subsidization of competitive products by market dominant products should arise (39 U.S.C. 3633(a)(1)). We therefore find that the new prices and classification changes are in accordance with 39 U.S.C. 3632–3633 and 39 CFR 3015.2.
Overall, the Express Mail price change represents a 4.5 percent increase. The existing structure of zoned Retail, Commercial Base and Commercial Plus price categories is maintained.
Retail prices will increase an average of 4.5 percent. The price for the Retail flat-rate envelope, almost half of all
The Commercial Base price category offers lower prices to customers who use online and other authorized postage payment methods. The average price increase for Commercial Base will be the same as Retail, 4.5 percent.
The Commercial Plus price category offers even lower prices to large-volume customers who ship at least 6,000 Express Mail pieces annually. Commercial Plus prices will increase 4.4 percent.
Overall, Priority Mail prices will increase by 3.3 percent. In addition to the existing Retail, Commercial Base, and Commercial Plus price categories, a new price category, Commercial Plus Cubic, is being introduced.
Retail prices will increase an average of 3.9 percent. Flat-rate box prices will be: Small, $4.95; Medium, $10.70; Large, $14.50; and Large APO/FPO, $12.50. The name of the medium-sized box is changed from “Regular” to “Medium.”
The Commercial Base price category offers lower prices to customers using online and other authorized postage payment methods. The average price increase for Commercial Base will be 2.9 percent.
The Commercial Plus price category offers even lower prices to customers who ship more than 100,000 Priority Mail pieces or more than 600 Priority Mail Open and Distribute containers annually. The average price increase for Commercial Plus will be 0.9 percent. Two new innovations in Commercial Plus will be added this year—a half pound price starting at $4.22, and a flat-rate padded envelope priced at $4.95.
The new category, Commercial Plus Cubic, offers attractive prices, based on package size (cubic volume), to customers who ship more than 250,000 Priority Mail pieces annually, for their shipments of smaller, cost-efficient packages that weigh less than 20 pounds which are no larger than ½ cubic foot in volume.
On average, prices for Parcel Select, the Postal Service's bulk ground shipping product, will increase 4.7 percent. For destination entered parcels, the average price increases are 3.9 percent for parcels entered at a destination delivery unit (DDU), 6.9 percent for parcels entered at a destination plant (DSCF) and 6.9 percent for parcels entered at a destination Bulk Mail Center (DBMC). There are no changes to nondestination-entered parcels.
The Loyalty Incentive and Growth Incentive rebates are being eliminated as of the end of May 2010. Also, the 50-piece volume minimum for the Barcoded Nonpresort price category is eliminated for parcels paid using PC Postage.
Non-substantive, editorial changes are also made. Headings separating destination-entered and nondestination-entered categories are added to the list of price categories. The price category list is also modified to conform to the way the price charts are displayed, including elimination of repetitive notes from the price charts.
Parcel Return Service prices will have an overall price increase of 3.0 percent. Prices will increase 3.3 percent for parcels picked up at a Bulk Mail Center (RBMC) and 2.1 percent for parcels picked up at a delivery unit (RDU).
There are no changes.
International expedited services include GXG and Express Mail International (EMI). Overall, GXG prices will rise by 4.1 percent, and EMI will be subject to an overall 2.9 percent increase. The existing structure of both services will remain the same.
The overall increase for Priority Mail International (PMI) will be 3.0 percent. The existing structure of PMI will remain the same; however, minor edits are made to the Mail Classification Schedule for PMI parcels by creating a single maximum dimension for both rectangular and non-rectangular pieces. Corresponding changes are also made to the classification language for inbound air parcels, as well as PMI parcels entered under customized agreements. In addition, rate group 6 is assigned to Cuba. This corrects the MCS text, since the Postal Service currently offers the full array of outbound letter post, including PMI flat-rate envelope and small flat-rate box, to that destination. The name of the medium-sized flat-rate box is changed from “Regular” to “Medium.”
A minor classification change is included in the country schedules in Part D of the MCS. Specifically, rate groups are assigned to Kosovo. These country group assignments correspond to those for Serbia.
The changes in prices and classes set forth herein shall be effective at 12:01 a.m. on January 4, 2010. We direct the Secretary to have this decision published in the
Notice of preparation of the 2009–2011 U.S.-Chile Environmental Cooperation Work Program and request for comments.
The Department of State is soliciting ideas and suggestions for environmental cooperation projects between the United States and Chile. The United States and Chile are in the process of developing a 2009–2011 Work Program pursuant to the United States-Chile Environmental Cooperation Agreement (ECA) signed in June 2003. The ECA outlines broad areas for environmental cooperation with the objective of establishing a framework for cooperation between the United States and Chile to promote the conservation and protection of the environment, the prevention of pollution and degradation of natural resources and ecosystems, and the rational use of natural resources, in support of sustainable development. In addition, in the Environment Chapter of the U.S.-Chile Free Trade Agreement (FTA) (Chapter 19), “[t]he Parties recognize the importance of strengthening capacity to protect the environment and promote sustainable development in concert with strengthening trade and investment relations between them [and] agree to undertake cooperative environmental activities.” (U.S.-Chile FTA, Article 19.5(1)). The main areas of cooperation under the 2009–2011 Work Program are: (1) Strengthening the effective implementation and enforcement of environmental laws and regulations; (2) encouraging the development and adoption of sound environmental practices and technologies, particularly in business enterprises; (3) promoting the sustainable development and management of environmental resources, including wild fauna and flora, protected wild areas, and other ecologically important ecosystems; and (4) civil society participation in the environmental decision-making process and environmental education. During 2009–2011, the United States and Chile intend to continue to build upon the cooperative work initiated in the 2007–2008 Work Program, and to continue to follow up on the themes reflected in the environment chapter of the Free Trade Agreement (FTA).
The Department of State invites government agencies and the public, including NGOs, educational institutions, private sector enterprises and other interested persons, to submit written comments or suggestions regarding items for the Work Program and implementation of environmental cooperation activities. In preparing such comments or suggestions, we encourage submitters to refer to: (1) The U.S.-Chile ECA, (2) the U.S.-Chile Joint Commission for Environmental Cooperation (JCEC) 2007–2008 Work Program, (3) the U.S.-Chile FTA available at
To be assured of timely consideration, all written comments or suggestions are requested no later than December 28, 2009.
Written comments or suggestions should be e-mailed (
Jacqueline Tront, telephone (202) 647–4750 U.S. Department of State, Bureau of Oceans, Environment, and Science, Office of Environmental Policy.
Article 19.3 of the U.S.-Chile FTA establishes an Environmental Affairs Council (EAC), which is required to meet at least once a year to discuss the implementation and progress of environmental cooperation between the U.S. and Chile. Article II of the U.S.-Chile ECA establishes the JCEC, with responsibilities which include developing and periodically reviewing the work program. The work program is a tool which identifies and outlines agreed upon environmental cooperation priorities, on-going efforts and possibilities for future cooperation.
The 2009–2011 Work Program focuses on the following priority areas, with the following corresponding general objectives: (1) Strengthening the effective implementation and enforcement of environmental laws and regulations (see FTA Art. 19.2.1(a); ECA Art. III.2); (2) Encouraging the development and adoption of sound environmental practices and technologies, particularly in business enterprises (see FTA Art. 19.10; ECA Art. II.2(d), Art. III.2(d)); (3) Promoting sustainable development and management of environmental resources, including wild fauna and flora, protected wild areas, and other ecologically important ecosystems (see FTA Annex 19.3 Art. 3(d); ECA Art. III.2(d)) and (4) Civil society participation in the environmental decision-making process and environmental education (see FTA Arts. 19.3 and 19.4; ECA Arts. III.1 and IV). We are seeking ideas and suggestions for activities which can be included in the work plan.
Ongoing environmental cooperation work includes: environmental law training workshops for Chilean judges; environmental permitting training for Chilean inspectors; a Patagonia volunteer expedition project where volunteers are engaged in trail and habitat repair within Chilean protected areas; and consultations and information exchange to support Chile's efforts to implement a Pollutant Release and Transfer Registry. Projects that have been successfully completed and in which we are engaged in follow up activities include: promotion of renewable energy opportunities in Chile (
The ECA was signed on June 17, 2003, and sets out a framework for environmental cooperative activities between the two governments. The United States and Chile negotiated the ECA in concert with the U.S.-Chile FTA, which entered into force January 1, 2004. Article 19.3 of the U.S.-Chile FTA establishes the EAC. Article II of the ECA establishes the United States-Chile JCEC, with responsibilities which include developing and periodically reviewing the work program. The JCEC
At the upcoming fifth EAC meeting in Washington, DC on January 20, 2010, the EAC will review implementation of Chapter 19 and receive reports on (1) the progress of projects outlined in Chapter 19 of the FTA, (2) the roles and activities of the Trade and Environment Policy Advisory Committee and the public advisory committee that advises the Chilean government on environmental policy, and (3) the 2009–2011 Work Program. At its third meeting, the JCEC, during a Joint Public Session with the EAC, will receive reports on progress of implementing the 2007–2008 Work Program and review and approve the 2009–2011 Work Program. The EAC and JCEC will also consider recommendations for future bilateral cooperation.
In carrying out this cooperative work, the United States and Chile intend to explore the development of partnerships with private sector and civil society organizations, to build upon and complement ongoing bilateral cooperative work in other fora, and to explore opportunities for mutual collaboration in these priority areas with other countries in the Western Hemisphere.
Notice of the U.S.-Chile Environmental Affairs Council and Joint Commission for Environmental Cooperation and request for comments.
The Department of State and the Office of the United States Trade Representative (USTR) are providing notice that the United States and Chile intend to hold the fifth meeting of the Environment Affairs Council (the “Council”) and the third meeting of the Joint Commission for Environmental Cooperation (the “Commission”) in Washington, DC, on January 20, 2010. These bodies were created pursuant to Chapter 19 (Environment) of the United States-Chile Free Trade Agreement (FTA) and Article II of the United States-Chile Environmental Cooperation Agreement (ECA), respectively. A public information session will be held on January 20th, at 2 p.m., in room 1107 at the U.S. Department of State, 2201 C Street, NW., Washington, DC 20520. If you would like to attend the session, please send the following information to Jacqueline Tront at the fax number or e-mail address listed below under the heading
The purpose of the Council and Commission meeting is detailed below under
The meeting agenda will include an overview of Chapter 19 and review of its implementation, progress report on projects outlined in the FTA's Annex 19.3 on Environmental Cooperation, a discussion of the roles and activities of the Trade and Environment Policy Advisory Committee and the public advisory committee that advises the Chilean government on trade and environment policy issues, an overview of progress of implementing selected projects under the 2007–2008 Work Program pursuant to the ECA, and the presentation of a new ECA Work Program. The Department of State and USTR invite interested agencies, organizations, and members of the public to submit written comments or suggestions regarding agenda items and to attend the public session.
In preparing comments, we encourage submitters to refer to:
• Chapter 19 of the FTA, including Annex 19.3
• The Final Environment Review of the FTA
• The ECA
These documents are available at:
The Council/Commission meeting is to be held:
(1) January 20, 2010, 2 p.m. to 4:45 p.m., Washington, DC.
To be assured of timely consideration, comments are requested no later than January 10, 2009.
Written comments or suggestions should be submitted to both:
(1) Jacqueline Tront, Office of Environmental Policy, Bureau of Oceans, Environment, and Science, U.S. Department of State, by electronic mail at
(2) Mara M. Burr, Deputy Assistant United States Trade Representative for Environment and Natural Resources, Office of the United States Trade Representative by electronic mail at
Jacqueline Tront, Telephone (202) 647–4750 or Mara M. Burr, Telephone (202) 395–7320.
The United States-Chile FTA entered into force on January 4, 2004. Article 19.3 of the FTA establishes an Environment Affairs Council, which is required to meet at least once a year to discuss the implementation of, and progress under, Chapter 19. Chapter 19 requires that meetings of the Council include a public session. Under Chapter 19, the two governments agreed to undertake eight specific cooperative activities set out in Annex 19.3 to the Chapter and to negotiate a United States-Chile Environmental Cooperation Agreement to establish priorities for further cooperative environmental activities. The ECA entered into force on April 30, 2004, and sets out a framework for environmental cooperative activities between the two governments. Article II of the ECA establishes the United States-Chile Joint Commission for Environmental Cooperation, with responsibilities that include developing and periodically reviewing a work program. The Commission is required to meet at least every two years. The first meetings of the Council and the Commission were held on July 22, 2004, in Santiago, Chile, and the third meeting of the Council and second meeting of
At the fourth Council meeting held on April 24, 2008, in Santiago, Chile, the Council discussed the implementation of Chapter 19 of the FTA with respect to public participation, progress reports on the eight cooperative projects under Chapter 19, implementation of the 2005–2006 Work Program, and elaboration of the 2007–2008 Work Program. At that meeting the Trade and Environment Policy Advisory Committee and Chile's Advisory Committee held the first ever exchange between FTA-related trade and environment advisory committees.
At the upcoming fifth meeting of the Council, the Council will review the status of implementation of Chapter 19 and receive reports on levels of environmental protection (Article 19.1), enforcement of environmental laws (Article 19.2), opportunities for public participation (Article 19.4), the environment roster (Article 19.7), procedural matters (Article 19.8) and principles of corporate stewardship (Article 19.10). The Council will also assess the progress of projects outlined in Annex 19.3, the roles and activities of the Trade and Environment Policy Advisory Committee and the public advisory committee that advises the Chilean government on trade and environment policy issues, and the 2009–2010 Work Program Pursuant to the ECA. At its third meeting, the Commission, during a Joint Public Session with the Council, will receive reports on progress of implementing the 2007–2008 ECA Work Program and review and approve a new work program. At these meetings, the Council and Commission will also consider recommendations for future bilateral environmental cooperation. The public is advised to refer to the State Department Web site at
Department of State.
Notice.
In National Security Presidential Directive–56, Defense Trade Reform, signed January 22, 2008, the Department of State was directed to complete the review and adjudication of license applications within 60 days of receipt, except in cases where national security exceptions apply. The President further directed that these exceptions be published. A
Experience in the last nineteen months has indicated that a sixth exception is required. It has been noted in reviews that events may require the Department of State to initiate a review of an established export policy relevant to license applications. By the nature of the established deadline, this might result in cases that have been approvable before the review being returned without action to the applicant while the review is ongoing. Enforcement of the deadline without being able to account for these situations might result in another applicant's license, submitted after the first license but that had not reached the 60-day deadline, being approved once the review is complete; inadvertently creating an unlevel playing field. As such, the Directorate of Defense Trade Controls has added a sixth exception to account for this issue. In accordance with NSPD–56, the following six national security exceptions are applicable:
(1) When a Congressional Notification is required: The Arms Export Control Act Section 36 (c) and (d) and the International Traffic in Arms Regulations, 22 CFR 123.15, requires a certification be provided to Congress prior to granting any license or other approval for transactions, if it meets the requirements identified for the sale of major defense equipment, manufacture abroad of significant military equipment, defense articles and services, or the re-transfer to other nations. Notification thresholds differ based on the dollar value, countries concerned and defense articles and services.
(2) Required Government Assurances have not been received. These would include, for example, Missile Technology Control Regime Assurances, and Cluster Munitions assurances.
(3) End-use Checks have not been completed. (Commonly referred to as “Blue Lantern” checks. End-use checks are key to the U.S. Government's prevention of illegal defense exports and technology transfers, and range from simple contacts to verifying the bona fides of a transaction to physical inspection of an export.)
(4) The Department of Defense has not yet completed its review.
(5) A Waiver of Restrictions is required. (For example, a sanctions waiver.)
(6) When a related export policy is under active review and pending final determination by the Department of State.
Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), Maritime Administration (MARAD), Office of the Secretary of Transportation (OST), U.S. Department of Transportation (DOT).
Notice of Funding Availability; Clarification of Selection Criteria; Request for Comments.
The DOT's TIFIA Joint Program Office (JPO) announces the availability of a limited amount of funding in fiscal year (FY) 2010 to support new applications for credit assistance. Under TIFIA, the DOT provides secured (direct) loans, lines of credit, and loan guarantees to public and private applicants for eligible surface transportation projects of regional or national significance. Projects must meet statutorily specified criteria to be selected for credit assistance.
Because demand for the TIFIA program now exceeds budgetary resources, the DOT hereby formally
Additionally, the DOT provides new language clarifying its use of the TIFIA selection criteria, incorporating explicit consideration of these policy objectives: livability, economic competitiveness, safety, sustainability, and state of good repair. Finally, in light of constrained resources vis-à-vis demand for TIFIA assistance, the DOT requests comments regarding the potential implementation of a pilot program to accept, from qualified borrowers, an upfront fee payment to offset the entire subsidy cost of TIFIA credit assistance.
For consideration in the FY 2010 funding cycle, Letters of Interest must be submitted by 4:30 p.m. EST on December 31, 2009, using the revised form on the TIFIA Web site:
The application due date will be established after consultation between the TIFIA JPO and the applicant.
Comments regarding the potential pilot program must be submitted by 4:30 p.m. EST on December 31, 2009. Late-filed comments will be considered to the extent practicable.
Submit all Letters of Interest to the attention of Mr. Duane Callender via e-mail at:
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL–401, 1200 New Jersey Avenue, SE., Washington, DC 20590 or fax comments to (202) 493–2251. Provide two copies of comments submitted by mail or courier. Alternatively, comments may be submitted via the Federal eRulemaking Portal at
For further information regarding this notice please contact Duane Callender via e-mail at
The Transportation Equity Act for the 21st Century (TEA–21), Public Law 105–178, 112 Stat. 107, 241, (as amended by sections 1601–02 of Pub. L. 109–59) established the Transportation Infrastructure Finance and Innovation Act of 1998 (TIFIA), authorizing the U.S. Department of Transportation (DOT) to provide credit assistance in the form of secured (direct) loans, lines of credit, and loan guarantees to public and private applicants for eligible surface transportation projects. The TIFIA regulations (49 CFR part 80) provide specific guidance on the program requirements.
In 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) (Pub. L. 109–59, 119 Stat. 1144), which made a number of amendments to TIFIA including lowering the thresholds and expanding eligibility for TIFIA credit assistance. SAFETEA–LU authorized $122 million annually from the Highway Trust Fund (HTF) for fiscal years 2005 to 2009 in TIFIA budget authority to pay the subsidy cost of credit assistance. After reductions for administrative expenses and application of the annual obligation limitation, TIFIA has approximately $110 million available annually to provide credit subsidy support to projects. Although dependent on the individual risk profile of each loan, collectively, this budget authority represents approximately $1.1 billion in annual lending capacity. As detailed below, the TIFIA JPO is able to provide a limited amount of credit assistance to new applicants in FY 2010.
Highway, passenger rail, transit, and intermodal projects (including intelligent transportation systems) may receive credit assistance under TIFIA. Additionally, SAFETEA–LU expanded eligibility to private rail facilities providing public benefit to highway users, and surface transportation infrastructure modifications necessary to facilitate direct intermodal transfer and access into and out of a port terminal.
The DOT may provide credit assistance in the form of secured (direct) loans, lines of credit, and loan guarantees. These types of credit assistance are defined in 23 U.S.C. 601 and 49 CFR 80.3. Subject to certain conditions, the TIFIA credit facility can hold a subordinate lien on pledged revenues. The maximum amount of TIFIA credit assistance to a project is 33 percent of eligible project costs.
Projects seeking TIFIA assistance must meet certain statutory threshold requirements. Generally, the minimum size for TIFIA projects is $50 million of eligible project costs; however, the minimum size for TIFIA projects principally involving the installation of an intelligent transportation system is
The senior debt obligations for each project receiving TIFIA credit assistance must obtain an investment grade rating from at least one nationally recognized credit rating agency, as defined in 23 U.S.C. 601(a)(10) and 49 CFR 80.3. If the TIFIA credit instrument is proposed as the senior debt, then it must receive the investment grade rating.
To demonstrate this potential, each application must include a preliminary rating opinion letter from a credit rating agency that addresses the creditworthiness of the senior debt obligations funding the project (for example, those which have a lien senior to that of the TIFIA credit instrument on the pledged security) and the default risk of the TIFIA credit instrument, and that concludes there is a reasonable probability for the senior debt obligations to receive an investment grade rating. This preliminary rating opinion letter will be based on the financing structure proposed by the applicant. A project that does not demonstrate the potential for its senior obligations to receive an investment grade rating will not be considered for TIFIA credit assistance.
Letters of Interest submitted pursuant to this notice do not need to include the preliminary rating opinion letter. Only those invited to submit applications will be required to obtain the preliminary rating opinion letter.
Each project selected for TIFIA credit assistance must obtain an investment grade rating on its senior debt obligations (which may be the TIFIA credit facility) and a revised opinion on the default risk of the TIFIA credit instrument before the FHWA will execute a credit agreement and disburse funds. More detailed information about these TIFIA credit opinions and ratings may be found in the Program Guide on the TIFIA Web site at
Because the demand for credit assistance now exceeds budgetary resources, it is no longer feasible for DOT to maintain, as it has since 2002, an open process whereby the TIFIA JPO accepts applications on a “first come, first serve” basis as defined by the optimal schedule of the applicant. Instead, pursuant to this notice, the DOT returns to periodic fixed-date solicitations that will establish a competitive group of projects to be evaluated against the TIFIA program objectives.
Applicants seeking TIFIA credit assistance for FY 2010 must submit a Letter of Interest describing the project fundamentals and addressing the TIFIA selection criteria. For consideration in the FY 2010 funding cycle, Letters of Interest must be submitted by 4:30 p.m. EST on December 31, 2009, using the newly revised form on the TIFIA Web site:
A public agency that seeks access to TIFIA on behalf of multiple competitors for a project concession must submit the project's Letter of Interest. Although the public agency would not become the TIFIA borrower, nor even have yet identified the TIFIA applicant, it must provide information sufficient for the DOT to evaluate the project against the TIFIA program objectives. The DOT will not consider Letters of Interest from entities that have not obtained rights to develop the project.
After concluding its review of the Letters of Interest, the DOT will invite complete applications (including the preliminary rating opinion letter and detailed plan of finance) for the highest-rated projects. The application due date will be established after consultation between the TIFIA JPO and the applicant.
An invitation to apply for credit assistance does not guarantee the DOT's approval, which will remain subject to evaluation based on TIFIA's statutory credit standards and the successful negotiation of all terms and conditions.
There is no fee to submit a Letter of Interest. Unless otherwise indicated in a subsequent notice published in the
For projects that enter credit negotiations, the DOT and the applicant will execute a term sheet that, among other conditions, will require the borrower to pay at closing or, in the event no final credit agreement is reached, upon invoicing by the TIFIA JPO, an amount equal to the actual costs incurred by the TIFIA JPO in procuring the assistance of outside financial advisors and legal counsel through execution of the credit agreement(s) and satisfaction of all funding requirements of those agreements. Typically, the amount of this fee has ranged from $200,000 to $300,000, although it has been greater for projects that require complex financial structures and extended negotiations.
As described below, the DOT may charge the borrower a supplemental upfront fee to reduce the subsidy cost to the Federal Government of providing credit assistance. The subsidy cost calculation, also described below, is based on anticipated risk to the Federal Government. This fee is paid by or on behalf of the borrower at the DOT's point of obligation, usually at the execution of the credit agreement.
The TIFIA JPO charges each borrower an annual fee for loan servicing activities associated with each TIFIA credit instrument. The current fee, adjusted annually per the Consumer Price Index, is $11,500 per year.
Finally, the TIFIA credit agreements will allow the TIFIA JPO to charge, as incurred, a monitoring fee equal to its costs of outside advisory services required to assist the TIFIA JPO to modify or enforce the agreement.
Applicants may not include any of the fees described above—or any expenses associated with the application process (such as charges associated with obtaining the required preliminary rating opinion letter)—among eligible project costs for the purpose of calculating the maximum 33 percent credit amount.
The eight TIFIA selection criteria are described in statute at 23 U.S.C. 602(b) and assigned relative weights via regulation at 49 CFR 80.15. The criteria
Listed in order of relative weight, the TIFIA selection criteria are as follows:
(i) The extent to which the project is nationally or regionally significant, in terms of generating economic benefits, supporting international commerce, or otherwise enhancing the national transportation system.
(ii) The extent to which TIFIA assistance would foster innovative public-private partnerships and attract private debt or equity investment. Relative weight: 20 percent.
(iii) The extent to which the project helps maintain or protect the environment.
(iv) The creditworthiness of the project, including a determination by the Secretary of Transportation that any financing for the project has appropriate security features, such as a rate covenant, to ensure repayment. Relative weight: 12.5 percent.
(v) The likelihood that TIFIA assistance would enable the project to proceed at an earlier date than the project would otherwise be able to proceed. Relative weight: 12.5 percent.
(vi) The extent to which the project uses new technologies, including intelligent transportation systems, to enhance the efficiency of the project. Relative weight: 5 percent.
(vii) The amount of budget authority required to fund the Federal credit instrument made available under TIFIA. Relative weight: 5 percent.
(viii) The extent to which TIFIA assistance would reduce the contribution of Federal grant assistance to the project. Relative weight: 5 percent.
Note that, when evaluating the Letters of Interest, the information needed to address criterion (iv), creditworthiness, and criterion (vii), budget authority, is unlikely to be available in sufficient detail. Therefore, the DOT will not employ these two criteria when reviewing the Letters of Interest. However, DOT will consider these criteria when reviewing project applications.
As noted above, SAFETEA–LU authorized $122 million annually from the HTF for fiscal years 2005–2009 in TIFIA budget authority to pay the subsidy cost of credit assistance. As of the publication date of this notice, two short-term extensions of the surface transportation reauthorization act have been enacted continuing highway programs that were authorized through FY 2009, and the expectation is that Congress will reauthorize an equivalent amount of budget authority for the TIFIA program in FY 2010. Any budget authority not obligated in the fiscal year for which it is authorized remains available for obligation in subsequent years. The TIFIA budget authority is subject to an annual obligation limitation that may be established in appropriations law. Like all funds subject to the annual Federal-aid obligation ceiling, the amount of TIFIA budget authority available in a given year may be less than the amount authorized for that fiscal year.
Beginning in FY 2008, for the first time since the inception of the TIFIA program, the total credit requests from TIFIA applicants exceeded available resources. This new imbalance immediately proved substantial, as requests far exceeded the remaining authority provided by SAFETEA–LU, as well as an additional year (for example, FY 2010) funded at the equivalent level. In response, the Department suspended its consideration of new applications and reserved the anticipated fiscal years 2009 and 2010 appropriations with the expectation that several, if not all, of the existing applicants would—for the first time—contribute to the Government's cost of providing credit assistance in the form of an upfront fee as contemplated by the authorizing statute and the implementing regulation.
As stated in 23 U.S.C. 603(b)(7), 603(e) and 604(b)(9), the DOT may establish fees at a level sufficient to cover all or a portion of its costs of making a secured loan, loan guarantee, or line of credit. From this authority, 49 CFR 80.17(c) states:
If, in any given year, there is insufficient budget authority to fund the credit instrument for a qualified project that has been selected to receive assistance under TIFIA, the DOT and the approved applicant may agree upon a supplemental fee to be paid by or on behalf of the approved applicant at the time of execution of the term sheet to reduce the subsidy cost of that project. No such fee may be included among eligible project costs for the purpose of calculating the maximum 33 percent credit amount [of eligible TIFIA assistance].
Consistent with the Federal Credit Reform Act of 1990 and the requirements of the Office of Management and Budget (OMB), the subsidy cost of a loan is affected by recovery assumptions, allowance for defaults, the borrower's interest rate, and fees. The factors that most heavily influence the subsidy cost of a TIFIA loan fall into the recoveries category (for example, the repayment pledge and whether the debt is senior or subordinate) and the allowance for defaults category (including the credit rating on the debt and the degree of back-loading). The borrower's interest rate will also affect the subsidy cost of the TIFIA loan. The final subsidy cost estimate is expressed as a percentage of the principal amount of the credit assistance.
By charging borrowers an upfront fee, the DOT is able to support more projects than under its previous policy—established when budget resources were ample—of funding a portion of the subsidy cost with its own monies. In fact, to meet existing applicant demand, the DOT used this authority to limit the maximum amount of funds it would obligate for any single project's subsidy cost, thus requiring borrowers in several instances to pay an upfront fee to offset the subsidy cost of TIFIA credit assistance. Even with this limitation, the DOT has had to reserve much of its anticipated FY 2010 TIFIA budget authority to support these projected commitments, relying primarily on future years' authorizations and appropriations to fund more credit assistance.
Several potential applicants, however, rather than waiting to compete for scarce TIFIA funds in FY 2010 and beyond, have indicated an interest in
The DOT will take all comments regarding the potential pilot program into consideration and, if it decides to proceed with the pilot program, may revise some elements of this notice. Depending on the nature of the comments and the number of Letters of Interest submitted, the DOT may invite applications without publishing a supplemental notice. If the DOT decides to proceed with the pilot program, qualified applicants that have responded to this notice would become eligible to pay an upfront fee to offset the entire cost of providing TIFIA credit assistance.
23 U.S.C. 601–609; 49 CFR 1.48(b)(6); 23 CFR part 180; 49 CFR part 80; 49 CFR part 261; 49 CFR part 640.
Lassen Valley Railway LLC (LVR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire and operate approximately 22.34 miles of rail line owned by Union Pacific Railroad Company (UP): (1) the Flanigan Industrial Lead, between milepost 338.33 near Flanigan, NV, and milepost 360.10 near Wendel, CA, and (2) the Susanville Industrial Lead, between milepost 358.68 and milepost 359.25, near Wendel.
This transaction is related to a concurrently filed verified notice of exemption in STB Finance Docket No. 35307,
The transaction is expected to be consummated on or shortly after December 17, 2009 (the effective date of the exemption).
LVR certifies that its projected annual revenues as a result of the transaction will not result in its becoming a Class II or Class I rail carrier and further certifies that its projected annual revenue will not exceed $5 million.
Pursuant to the Consolidated Appropriations Act, 2008, Public Law 110–161, § 193, 121 Stat. 1844 (2007), nothing in this decision authorizes the following activities at any solid waste rail transfer facility: collecting, storing or transferring solid waste outside of its original shipping container; or separating or processing solid waste (including baling, crushing, compacting and shredding). The term “solid waste” is defined in section 1004 of the Solid Waste Disposal Act, 42 U.S.C. 6903.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35306, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Fritz R. Kahn, 1920 N Street, NW. (8th Floor), Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
Kern W. Schumacher (Schumacher), a noncarrier, has filed a verified notice of exemption to continue in control of Lassen Valley Railway LLC (LVR) upon LVR's becoming a Class III rail carrier.
This transaction is related to a concurrently filed verified notice of exemption in STB Finance Docket No. 35306,
The parties intend to consummate the transaction on or after December 17, 2009, the effective date of the exemption.
Mr. Schumacher currently controls six Class III rail carriers: Tulare Valley Railroad Company (TVR), Kern Valley Railroad Company (KVR), V&S Railway, Inc. (V&S), Gloster Southern Railroad Company LLC (GLSR), Grenada Railway LLC (GRYR), and Natchez Railway LLC (NTZR). TVR owns 5.9 miles of rail line in California; KVR owns 2 miles of rail line in Colorado; V&S owns 27 miles of rail line in Kansas and 122 miles of rail line in Colorado; GLSR owns 34.8 miles of rail line in Mississippi and Louisiana; GRYR owns 186.82 miles of rail line in Mississippi; and NTZR owns 65.6 miles of rail line in Mississippi.
As represented, Mr. Schumacher has many years of experience managing short line railroads. Mr. Schumacher anticipates that, with the substantial
Mr. Schumacher represents that: (1) The rail lines to be acquired by LVR do not connect with any other railroad in its corporate family; (2) the transaction is not part of a series of anticipated transactions that would connect the rail lines with any other railroad in its corporate family; and (3) the transaction does not involve a Class I rail carrier. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35307, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Fritz R. Kahn, 1920 N Street, NW. (8th Floor), Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
The Surface Transportation Board has received a request from Saul Ewing LLP on behalf of Trinity Industries, Inc. (WB605–6—11/19/09) for permission to use certain data from the Board's 2008 Carload Waybill Sample. A copy of this request may be obtained from the Office of Economics, Environmental Analysis, and Administration.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics, Environmental Analysis, and Administration within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Environmental Protection Agency (EPA).
Final rule.
EPA is issuing national emission standards for control of hazardous air pollutants (HAP) for the Paints and Allied Products Manufacturing area source category. The final rule establishes emission standards in the form of management practices for volatile HAP, and emission standards in the form of equipment standards for particulate HAP. The emissions standards for new and existing sources are based on EPA's determination as to what constitutes the generally available control technology or management practices (GACT) for the area source category.
This final rule is effective on December 3, 2009.
EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2008–0053. All documents in the docket are listed in the Federal Docket Management System index at
Melissa Payne, Regulatory Development and Policy Analysis Group, Office of Air Quality Planning and Standards (C404–05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711,
The supplementary information in this preamble is organized as follows:
The regulated categories and entities potentially affected by this final rule are shown in the table below. You are subject to this subpart if you own or operate a facility that performs paints and allied products manufacturing that is an area source of hazardous air pollutant (HAP) emissions and processes, uses, or generates materials containing the following HAP: benzene, methylene chloride, and compounds of cadmium, chromium, lead, and nickel.
The paints and allied products manufacturing area source rule (CCCCCCC) covers all coatings, but does not include resin manufacturing, which is covered by the chemical manufacturing area source standard (VVVVVV). Facilities that manufacture both resins and coatings are required to comply with both rules. Paints and allied products are defined in Sec. 63.11607 as any material such as a paint, ink, or adhesive that is intended to be applied to a substrate and consists of a mixture of resins, pigments, solvents, and/or other additives. Typically, the industries that manufacture these products are described by Standard Industry Classification (SIC) codes 285 or 289 and North American Industry Classification System (NAICS) codes 3255 and 3259 and are produced by physical means, such as blending and mixing, as opposed to chemical synthesis means, such as reactions and distillation. The source category does not include the following: (1) The manufacture of products that do not leave a dried film of solid material on the substrate, such as thinners, paint removers, brush cleaners, and mold release agents; (2) the manufacture of electroplated and electroless metal films; (3) the manufacture of raw materials, such as resins, pigments, and solvents used in the production of paints and allied products;
This table
In addition to being available in the docket, an electronic copy of this proposed action will also be available on the Worldwide Web (WWW) through EPA's Technology Transfer Network (TTN). A copy of this proposed action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address:
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 1, 2010. Under section 307(b)(2) of the CAA, the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.
Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112(d) of the Clean Air Act requires EPA to establish national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of HAP that are listed for regulation under CAA section 112(c). A major source emits or has the potential to emit 10 tons per year (tpy) or more of any single HAP or 25 tpy or more of any combination of HAP. An area source is a stationary source that is not a major source.
Section 112(k)(3)(B) of the CAA calls for EPA to identify at least 30 HAP which, as the result of emissions from area sources, pose the greatest threat to public health in the largest number of urban areas. Section 112(c)(3) requires EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. EPA implemented these provisions in 1999 in the Integrated Urban Air Toxics Strategy, (64 FR 38715, July 19, 1999). Specifically, in the Strategy, EPA identified 30 HAP that pose the greatest potential health threat in urban areas, and these HAP are referred to as the “30 urban HAP.” A primary goal of the Strategy is to achieve a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources.
Under CAA section 112(d)(5), we may elect to promulgate standards or requirements for area sources “which provide for the use of generally available control technologies or management practices (GACT) by such sources to reduce emissions of hazardous air pollutants.” Additional information on GACT is found in the Senate report on the legislation (Senate Report Number 101–228, December 20, 1989), which describes GACT as:
* * * methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems.
Determining what constitutes GACT involves considering the control technologies and management practices that are generally available to the area sources in the source category. We also consider the standards applicable to major sources in the same industrial sector to determine if the control technologies and management practices are transferable and generally available to area sources. In appropriate circumstances, we may also consider technologies and practices at area and major sources in similar categories to determine whether such technologies and practices could be considered generally available for the area source category at issue. Finally, as noted above, in determining GACT for a particular area source category, we
We are promulgating these national emission standards in response to a court-ordered deadline that requires EPA to issue standards for categories listed pursuant to section 112(c)(3) and (k) by November 16, 2009 (
This final rule contains several revisions and clarifications to the proposed rule made after considering public comments. The following sections present a summary of the changes to the proposed rule. We explain the reasons for these changes in detail in the summary of comments and responses (section V of this preamble).
We made several changes to clarify the applicability of this final rule. Specifically, we have clarified that the final rule does not include retail and commercial paints and allied products operations which add and mix pigments to pre-manufactured products per customer specifications.
We have revised the definition of “paints and allied products manufacturing” to exclude activities by end users of paints and allied products to ready those materials for application. We have also revised the definition of “paints and allied products manufacturing process” to exclude weighing, mixing, tinting, blending, diluting, stabilizing, or any other handling of these paints and allied products to ready these materials for use by end users.
Furthermore, we clarified the types of operations by end users that are not covered by this area source category. An end user is someone who applies a coating to substrate, similar to the Miscellaneous Coating Manufacturing major source rule (40 CFR part 63, subpart HHHHH). The final rule does not apply to activities conducted by end users of coating products in preparation for application (68 FR 69164, December 11, 2003). Thus, operations that modify a purchased coating prior to application at the purchasing facility are not included in the Paints and Allied Products Manufacturing area source category; this would apply only if the purchased product is already a coating that an end user could apply as purchased. The activities and operations described above are not subject to today's rule because they were not part of the listed source category under CAA section 112(c)(3).
In the proposed rule, we proposed that the affected source include the entire facility if the facility emitted any of the paints and allied products manufacturing target HAP. Specifically, under the proposal, all process vessels at the facility would be subject to the standards if any emissions source at the facility emitted one of the paints and allied products manufacturing target HAP.
We have made several changes to the standards for paints and allied products manufacturing. For the metal HAP standards, we have revised the requirement to conduct an initial visible emission test by changing the test method from Method 9 to Method 203C. In addition we have revised the opacity standard from 5 percent opacity to 10 percent opacity. We have also removed the requirement to conduct additional visible emissions tests every six months. Instead, we have added quarterly Method 22 visible emission observations.
We have also extended the initial particulate control device testing date from 60 days to 180 days from the compliance date for an existing source, and 180 days of start-up of a new system.
We have removed the requirement to cover all process tanks with a lid or cover. Instead, only process vessels that contain benzene or methylene chloride will be required to be covered. In addition, we have added a provision to allow operators to open any vessel only to the extent necessary for quality control testing and product sampling, addition of materials, or product removal.
We have revised § 63.11603, “What are my notification, reporting, and recordkeeping requirements?” of this final rule to revise the submittal dates for the Initial Notification of Applicability and Notification of Compliance Status reports. We have extended the initial notification of applicability from 120 days after publication of the final rule in the
We have made several changes to the final rule definitions in § 63.11607, “What definitions apply to this subpart?”, and have added definitions for other terms used in this final rule. We added definitions for construction, dry particulate control device, responsible official, and wet particulate control device. We have revised the definition of paints and allied products, paints and allied products manufacturing, and paints and allied products manufacturing process.
We corrected several typographical errors that appeared in various sections of the proposed rule.
This final rule (subpart CCCCCCC) applies to new or existing paints and allied products manufacturing operations which are area sources of one of the target hazardous air pollutants (HAP) and that process, use, or generate materials containing one or more of the following target HAP: Benzene, methylene chloride, and compounds of cadmium, chromium, lead, and nickel. “Material containing HAP” is defined in the regulations as any material that contains benzene, methylene chloride, or compounds of cadmium, chromium, lead, or nickel, in amounts greater than or equal to 0.1 percent by weight, as shown by the manufacturer or supplier, such as in the Material Safety Data Sheet (MSDS) for the material.
In the proposed rule, we proposed that the affected source include the entire facility if the facility processes, uses, or generates any of the target HAP. Specifically, under the proposed rule, if the facility processes, uses, or generates any of the target HAP, then they would be required to control all HAP that is processed, used, or generated at the facility. In response to comments, we
Paints and allied products manufacturing operations include the production of paints, inks, adhesives, stains, varnishes, shellacs, putties, sealers, caulks, and other coatings from raw materials, the intended use of which is to leave a dried film of solid material on a substrate. Typically, the manufacturing industries that produce these materials are described by SIC codes 285 or 289 and NAICS codes 3255 and 3259 and are produced by physical means, such as blending and mixing, as opposed to chemical synthesis means, such as reactions and distillation. Paints and allied products manufacturing does not include: (1) The manufacture of products that do not leave a dried film of solid material on the substrate, such as thinners, paint removers, brush cleaners, and mold release agents; (2) the manufacture of electroplated and electroless metal films; (3) the manufacture of raw materials, such as resins, pigments, and solvents used in the production of paints and coatings; and (4) activities by end users of paints or allied products to ready those materials for application. Quality assurance and quality control laboratories are not considered part of a paints and allied products manufacturing process, as they were not part of the listed paints and allied products source category. Additionally, the standards do not apply to research and development facilities, as defined in section 112(c)(7) of the CAA. Quality assurance and quality control laboratories and research and development facilities were inadvertently omitted from the proposal, but the final rule corrects this omission.
If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13 of subpart A (General Provisions).
All existing area source facilities subject to this rule are required to comply with the rule requirements no later than December 3, 2012. New sources are required to comply with the rule requirements upon December 3, 2009 or upon startup of the facility, whichever is later.
There are four general process operations common to the paints and allied products manufacturing source categories that emit one or more of the target HAP. These four process operations are: (1) Preassembly and premix, (2) pigment grinding, milling, and dispersing, (3) product finishing and blending, and (4) product filling and packaging.
For premix and assembly, the final rule addresses the target HAP emissions that are generated during the addition of pigments and other solid materials to the process or mixing vessels. The preassembly and premix step involves the collection of raw materials that will be used to produce the desired coating product. These materials are added to a high speed dispersion or mixing vessel. The types of raw materials that are used for solvent-based coatings include resins, organic solvents, plasticizers, dry pigment, and pigment extenders; water, ammonia, dispersant, pigment, and pigment extenders are used for water-based coatings.
The final rule addresses HAP emissions from pigment grinding, milling, and dispersing. Pigment grinding or milling entails the incorporation of the pigment into the paint or ink vehicle to yield fine particle dispersion. The three stages of this process include wetting, grinding, and dispersion, which may overlap in any grinding operation. The wetting agent, normally a surfactant, wets the pigment particles by displacing air, moisture, and gases that are adsorbed on the surface of the pigment particles. Grinding is the mechanical breakup and separation of pigment clusters into isolated particles and may be facilitated by the use of grinding media such as pebbles, balls, or beads. Finally, dispersion is the movement of wetted particles into the body of the liquid vehicle to produce a particle suspension.
For product finishing and blending, the final rule addresses the HAP emissions that occur during heat-up losses during operation of the mixers; surface evaporation during mixing and blending; and the addition of pigments and other solid materials to the process or mixing vessels.
For product filling and packaging, the final rule addresses HAP emissions from the addition of small amounts of pigments, solids, or liquids to achieve the required color or consistency of the final product.
The following is a description of the control requirements for the paints and allied products manufacturing process described in section IV.C above. The control requirements only apply when an operation is being performed at a process vessel that uses materials containing HAP. As stated earlier, the regulations define “materials containing HAP” as a material containing benzene, methylene chloride, or compounds of cadmium, chromium, lead, and/or nickel, in amounts greater than or equal to 0.1 percent by weight, as shown in formulation data provided by the manufacturer or supplier for the material, such as the Material Safety Data Sheet.
This final rule requires owners or operators of all existing and new affected facilities to operate a particulate control device during the addition of pigments and other solids that contain compounds of cadmium, chromium, nickel, or lead, and during the grinding and milling of pigments and solids that contain compounds of cadmium, chromium, nickel, or lead.
Particulate control devices that vent to the atmosphere must be maintained such that visible emissions from the particulate control device shall not exceed 10 percent opacity when averaged over a six-minute period. Affected sources using particulate control devices that do not vent to the atmosphere are not subject to the requirements of this rule, as there are no emissions to the atmosphere.
This final rule requires new and existing affected sources to equip process and storage vessels that store or process materials containing benzene or methylene chloride with covers or lids. The covers or lids can be of solid or flexible construction, provided they do not warp or move around during the manufacturing process. The covers or lids must maintain contact along at least 90 percent of the vessel rim and must be maintained in good condition. Mixing vessels that process or store materials containing one or more of the target volatile HAP must be equipped with covers that completely cover the vessel, except for safe clearance of the mixer shaft. All vessels that store or process materials containing benzene or methylene chloride must be kept covered at all times, except for quality control testing and product sampling, addition of materials, material removal, or when the vessel is empty.
The final rule requires that leaks and spills of materials containing benzene or methylene chloride must be minimized and cleaned up as soon as practicable, but no longer than 1 hour from the time of detection. Rags or other materials that use a solvent containing benzene or methylene chloride for cleaning must be kept in a closed container. The closed container may contain a device that allows pressure relief but does not allow liquid solvent to drain from the container.
To demonstrate initial compliance with this final rule, owners or operators of affected new or existing sources must certify that they have implemented all required control technologies and management practices and that all equipment associated with the processes will be properly operated and maintained. In addition, a visual emission test using EPA Method 203C is required to be performed on the particulate control device on or before the compliance date.
This rule requires owners and operators of affected facilities to inspect the particulate control device annually to check the structural integrity of the particulate control device, and to perform a visual emission test using EPA Method 22 on the particulate control device every 3 months. If visible emissions are observed for two minutes of the required 5 minute Method 22 observation period, a Method 203C (40 CFR part 51, appendix M) test must be conducted within 15 days of the time when visible emissions were observed. If the Method 203C test indicates an opacity greater than 10 percent, you must take corrective action and retest using Method 203C within 15 days. The owner/operator will continue to take corrective action and retest each 15 days until a Method 203C test indicates an opacity equal to or less than 10 percent. Failure to meet the 10 percent opacity standard is a deviation and must be reported in your annual compliance report along with the corrective actions taken.
New and existing affected sources are required to comply with certain requirements of the General Provisions (40 CFR part 63, subpart A). Each new source is required to submit an Initial Notification no later than 180 days after initial startup of the operations or June 1, 2010, whichever is later. Existing affected sources must submit the Initial Notification no later than June 1, 2010. Notification of Compliance Status reports are required to be submitted according to the requirements in 40 CFR 63.9 in the General Provisions no later than June 3, 2013 for existing sources, or no later than 180 days after initial startup, or by June 1, 2010, whichever is later for new sources.
The affected source is required to prepare an annual compliance certification report. The annual compliance certification report contains the company name and address, a statement signed by a responsible official that certifies the truth, accuracy, and completeness of the certification report, and a statement of whether the source has complied with all of the relevant standards and other requirements of this rule. If there are any deviations from the requirements of this subpart, the facility must submit this annual compliance certification report with any deviation reports prepared during the year. The deviation reports must describe the circumstance of the deviation and the corrective action taken.
Facilities are also required to maintain all records that demonstrate initial and continuous compliance with this final rule, including records of all required notifications and reports, with supporting documentation; and records showing compliance with management practices. Owners and operators must also maintain records of the following, if applicable: Date and results of the particulate control device inspections; date and results of all visual determinations of visible emissions, including any follow-up tests and corrective actions taken; and date and results of all visual determinations of emissions opacity, and corrective actions taken.
We received a total of 27 comments on the proposed NESHAP from industry representatives, trade associations, Federal and State agencies, and the general public during the public comment period. Sections V.A through V.F of this preamble provide responses to the significant public comments received on the proposed NESHAP.
One commenter suggests that EPA refer to the language used in the major source miscellaneous coatings manufacturing rule (40 CFR part 63, subpart HHHHH), which clarified its intent to regulate the coatings manufacturers, not activities by end users to prepare or modify coatings in preparation for application.
Another commenter requests that the definitions clarify that the rule does not apply to raw material production, as some larger area source facilities will be co-located with such operations.
(1) The manufacture of products that do not leave a dried film of solid material on the substrate, such as thinners, paint removers, brush cleaners, and mold release agents;
(2) The manufacture of electroplated and electroless metal films;
(3) The manufacture of raw materials, such as resins, pigments, and solvents used in the production of paints and coatings; and
(4) Activities by end users of paints or allied products to ready those materials for application.
In terms of the breadth of the rule's applicability, some manufacturing facilities may have co-located or affiliated operations which meet the definition of paints and allied products manufacturing, and to which this rule does apply.
One commenter supports EPA's decision to apply the standard to all HAP. The commenter notes that EPA has the discretion under § 112(d) of the Clean Air Act to issue standards for areas sources “to reduce emissions of hazardous air pollutants,” and EPA's discretion is not limited to only regulating only the target HAP in the area source program.
Several commenters request that EPA limit the rulemaking's applicability to those operations at a facility that are actually utilizing one of the target HAP. The commenters believe that EPA should revise the applicability language to make it clear that the rule only applies to processes with target HAP emissions at an affected source, as opposed to any operation at an affected source, regardless of whether or not the process involves one or more of the target HAP. One of the commenters notes that this approach is used in the Area Source Standards for Paint Stripping and Miscellaneous Surface Coating Operations and the Area Source Standards for Nine Metal Fabrication and Finishing Source Categories. Several of the commenters state that the intent of the area source regulations was to regulate the 30 Urban Air toxics, and EPA is significantly increasing the burden on industry, especially small businesses, by expanding the rule beyond the target HAP, without commensurate environmental benefit. One of the commenters requests that only the presence of one or more of the target metal HAP should trigger the requirements for other metal HAP, and that only the presence of benzene or methylene chloride should trigger the requirements for other volatile HAP emissions.
To develop the emissions standards in today's rule, we identified the emission points that emit the target HAP and determined GACT for those emission sources. The proposed regulatory text required that these GACT requirements apply at all times, whether any of the target HAP was or was not being used.
The commenters requested that the GACT requirements only apply when the target HAP are being processed, used, or generated. They did not claim that EPA lacks the authority under § 112(d) of the Clean Air Act to regulate HAP other than the target HAP, but rather based their arguments on claims of potential burdens of expanding the rule beyond the target HAP. However, these commenters did not provide specific information regarding the potential additional burden to support these assertions. We believe there may be a minimal increase in the burden associated with controlling emissions in the instances when a non-target HAP is being used (without a target HAP also being present). Facilities that process, use, or generate one or more of the target HAP must have the required controls in place, and these same controls will control other metal and/or volatile HAP.
We did make changes in the final rule to clarify our original intent that the requirements apply only when a target HAP is processed, used, or generated. We also further refined this to specify that the requirement to keep process and storage vessels covered only applies when the vessel contains target volatile HAP.
Another commenter noted that EPA has already determined in other Part 63 NESHAP regulations (such as the HON in subpart G container definition at § 63.111) and the RCRA Hazardous Waste Subpart CC regulations at 40 CFR 264/265.1080(b)(2) that containers of a capacity less than or equal to 0.1 cubic meters (m³) produce insignificant emissions and thus are exempted from the regulations. Additionally, the commenter stated that the HAP mandated to be regulated should be specifically listed in order to avoid any confusion.
None of the information that we found limited the use of lids or covers to the size of the tank. Therefore, we believe it is appropriate to require the use of lids or covers on all process and storage tanks that contain one or more of the target HAP, regardless of the size of the tank. The commenters did not provide any information to explain why covering a process tank of less than 250 gallons is burdensome. The commenters also provided no information to support adopting different requirements for smaller process tanks, nor do they provide any information explaining that process tank covers for the smaller tanks are not generally available control technology. The volatile HAP to be controlled are listed at § 63.11599(3).
One commenter believes that EPA's 1995 “once in/always in” policy applies to major sources subject to MACT standards and would not apply to this area source regulation. The commenter requested that EPA officially confirm that this policy does not apply to this final rulemaking and/or facilities that no longer use the target HAP after the date of implementation have the ability to opt-out of the rule.
The commenters claim that EPA has provided de minimis exemptions in previous area source rules, including Clay Ceramics, Glass Manufacturing, and the Benzene NESHAP for Waste Operations. One commenter states that precedence for a de minimis threshold (beyond the Occupational Safety and Health Administration (OSHA) de minimis threshold) is established in earlier NESHAP rulemakings, where EPA determined that the use of coatings containing urban air toxics below certain thresholds do not negatively impact human health and the environment. Specifically, the commenter notes that in the Clay Manufacturing Area Source Rule, EPA included an applicability de minimis based on the argument that emissions from facilities with annual production of less than 50 tons/year were not included in the 1990 baseline emissions inventory that was used in the basis for the area source category listing. The commenter states that only those above the 50 ton/year threshold were in the basis for listing, so only those facilities are covered by the rule. The commenter believes the same is true for the paints and allied products manufacturing rule. Other commenters stated that state rules for paints and allied products manufacturing contain de minimis thresholds that exclude lower volume production facilities, waterborne production facilities, and small process tanks. The commenters state that since EPA can look to state regulations as part of the GACT analysis, EPA has the authority to adopt a 100 lb/year emission de minimis threshold. Several commenters believe that without a de minimis emission threshold, a facility that relies on a supplier MSDS may find itself out of compliance if, for example, a supplier reports a new trace metal constituent on the MSDS. The commenters note that the metals of concern are often contaminants in purchased raw materials. The commenters note that if the supplier's raw material source changes and the supplier's analysis begins to show higher traces of a metal, a manufacturer would be out of compliance upon receiving this new MSDS, even though no reportable emissions of the metal have occurred.
“With this action, we are also clarifying that artisan potters, small ceramics studios, noncommercial entities, and schools and universities with ceramic arts programs, which typically have annual production rates of 45 Mg/yr (50 tpy) or less, are not a part of the source category listed pursuant to section 112(c)(3) and (k)(3)(B), and are, therefore, not covered by this area source standard. Urban HAP emissions from these facilities were not included in the 1990 baseline emissions inventory that was used as the basis for the area source category listing.”
Finally, commenters are concerned that without a de minimis emission threshold, a facility that relies on a MSDS may find itself out of compliance if a raw material source changes and the supplier's analysis begins to show higher traces of a metal, and those higher levels are not reflected on the MSDS. The CAA section 112(k) inventory was primarily based on the 1990 Toxics Release Inventory (TRI), and that is the case for the paints and allied products manufacturing area source category as well. The reporting requirements for the TRI do not require reporting of de minimis concentrations of toxic chemicals in mixtures, as reflected in the above concentration levels; therefore, the CAA section 112(k) inventory would not have included emissions from operations involving chemicals below these concentration levels.
In addition, EPA believes the regulations as proposed adequately address the commenters' concern regarding reliance on the MSDS. For facilities that rely on a supplier MSDS, the manufacturer would only be out of compliance if the materials containing one or more of the target HAP greater than 0.1 percent are used in the process, without the required controls in place. Therefore, a manufacturer would be required to submit the appropriate forms if the manufacturer intends to use the material containing HAP greater than 0.1 percent by weight in the manufacturing process. Commenters provide no evidence to indicate that MSDS from suppliers will be inaccurate and will result in noncompliance with the regulation.
According to the commenter, a review of the commenter's internal data show significant differences between larger and smaller facilities based on production levels, matching EPA estimates that the metal HAP emissions for a typical “small emission” area source facility are only about 10 percent of the level of emissions for a typical “large emission” area source facility.
The commenter states that in the area source rule for Chemical Manufacturing, EPA evaluated impacts for two groupings or subcategories for metal HAP and considered a threshold because of an observed difference in operation depending on the emission rate. The commenter further notes that EPA realized that there was a difference between facilities with higher HAP emissions that manufactured products containing HAP as an intended part of the product, and a majority of facilities with low emissions where the HAP originated from impurities in raw materials. The commenter believes there is a similar observed difference in operations depending on the emission rate for the paints and allied products manufacturing industry as well. The commenter states that facilities with actual emissions of paints and allied products manufacturing metal HAP (cadmium, chromium, nickel and lead) above 100 lb/yr produce products that contain the HAP as an intended part of the product. The commenter also asserts that EPA has the discretion to create subcategories of area sources, and that EPA should do so in the paints and allied products manufacturing rule based on cost considerations, as well as differing industry practices and processes.
The commenter claims that two of the management practices EPA proposed to identify as GACT are used frequently: (1) Sweeping/cleaning, and (2) purchasing only materials that are free (to the greatest extent possible) of HAP metals. Of the particulate matter (PM) control technologies EPA proposed as GACT, the commenter claims that large paints and allied products manufacturing facilities frequently use baghouses to reduce PM/HAP emissions, while smaller (less than 100 lb/year emission) facilities most often do not. The commenter also states that the consideration of costs and economic impacts is especially important for determining GACT for small paints and allied products manufacturing facilities because, given their extremely low level of HAP emissions, requiring additional controls would result in only marginal reductions in emissions at very high costs for modest incremental improvement in control.
The commenter stated that EPA provides no explanation for its decision to issue GACT standards instead of MACT standards for the Paints and Allied Products Manufacturing area source category.
With respect
There are two critical aspects to CAA section 112(d)(5). First, CAA section 112(d)(5) applies only to those categories and subcategories of area sources listed pursuant to CAA section 112(c). The commenter does not dispute that EPA listed the area source category noted above pursuant to CAA section 112(c)(3). Second, CAA section 112(d)(5) provides that, for area sources listed pursuant to CAA section 112(c), EPA “
We disagree with the commenter's assertion that we must provide a rationale for issuing GACT standards under section 112(d)(5), instead of MACT standards. Had Congress intended that EPA first conduct a MACT analysis for each area source category, Congress would have stated so expressly in section 112(d)(5). Congress did not require EPA to conduct any MACT analysis, floor analysis or beyond-the-floor analysis before the Agency could issue a section 112(d)(5) standard. Rather, Congress authorized EPA to issue GACT standards for area source categories listed under section 112(c)(3), and that is precisely what EPA has done in this rulemaking.
Although EPA need not justify its exercise of discretion in choosing to issue a GACT standard for an area source listed pursuant to section 112(c)(3), EPA still must have a reasoned basis for the GACT determination for the particular area source category. The legislative history supporting section 112(d)(5) provides that GACT is to encompass:
“* * * methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems.”
Notwithstanding the commenter's claim, EPA properly issued standards for the area source categories at issue here under section 112(d)(5), and in doing so provided a reasoned basis for its selection of GACT for these area source categories. As explained in the proposed rule, EPA evaluated the control technologies and management practices that reduce HAP emissions at paints and allied products manufacturing facilities, including those at both major and area sources. In its evaluation, EPA used information on pollution prevention from industry trade associations, and reviewed operating permits to identify the emission controls and management practices that are currently used to control volatile and particulate HAP emissions. We also considered technologies and practices at major and area sources in similar categories.
Finally, even though not required, EPA did provide a rationale for why it set a GACT standard in the proposed rule. In the proposal, we explained that the facilities in the source categories at issue here are already well controlled for the urban HAP for which the source category was listed pursuant to section 112(c)(3). Consideration of costs and economic impacts proves especially important for the well-controlled area sources at issue in this final action. Given the current, well-controlled emission levels, a MACT floor determination, where costs cannot be considered, could result in only marginal reductions in emissions at very high costs for modest incremental improvement in control for the area source category.
Another commenter notes that there is no definition of capture or control efficiency in the proposed rule. The commenter recommends that EPA consider implementing capture and control system efficiencies parallel to those in the NESHAP for Nine Metal Fabrication and Finishing Sources (40 CFR part 63, subpart XXXXXX). In this rule, the commenter states that the term “adequate emissions capture methods” is defined in § 63.11522 to include “* * * drawing greater than 85 percent of the airborne dust generated from the process into the control device.” The commenter continues by saying that the Metal Fabrication and Finishing NESHAP requires spray paint booths to be fitted with PM filter technology that is “* * * demonstrated to achieve at least 98 percent capture. * * *”
As was stated in the proposal, we had concerns with the economic impact of particulate matter testing on the affected facilities, many being small businesses. A typical EPA Method 5 PM emissions test used for an emission limit or a percent reduction standard would cost between $3,000 and $10,000, while the cost of performing a Method 203C test is approximately $2,000, assuming an off-site contractor conducts the test.
EPA's statements in the May 6, 2009 proposed amendments for the Portland Cement NESHAP (74 FR 211360) are not relevant here. Our statements in that proposal were in relation to the use of an alternative opacity standard to demonstrate compliance with a numeric PM limit. In contrast, in the Paints and Allied Products Manufacturing area source NESHAP the opacity limit is not used to demonstrate compliance with a numeric PM limit. The opacity limit established in this rule is a standard and not a surrogate for particulate matter. The statements in the Portland Cement proposal did not question the use of an opacity limit for the specific purpose for which EPA is adopting such a limit in today's action. Therefore, we believe our decision to establish GACT as the requirement to capture and route PM emissions to a control device that achieves a specified opacity is warranted. This format is retained in the final rule.
In summary, we believe the requirement to capture and route PM emissions to a control device that achieves a specified opacity limit is GACT. This technology is generally available, and opacity is a reasonable and effective means of ensuring that the control device is functioning correctly and achieving emission reductions.
We agree with the commenter that particulate controls should be used during the addition of solid materials that contain HAP to high speed dispersion.
We disagree with the commenter's interpretation of the opacity limitations in the permit data. The majority of opacity limitations in the permits are general opacity limits that are intended to limit the amount of fugitive emissions that are emitted to the atmosphere from an industrial facility. These fugitive emissions include road dust, storage pile and other non-process emissions from an industrial facility. We believe that many of these opacity limits in the permits are not intended to limit the emissions from a particulate control device. To determine an appropriate opacity limit for this rule, we reviewed documents related to opacity and particulate control devices. Based on this review, we concluded that the opacity from a properly operated particulate control device would be zero or near zero. Therefore, we proposed a 5 percent opacity standard for the particulate control device.
We selected an opacity standard because opacity provides an indication of the concentration of particulates leaving an exhaust stack. The more particulate matter that is passed through the exhaust, the more light will be blocked, and, as a result, a higher opacity percentage is observed. The documents that we reviewed determined that in many cases a properly maintained particulate control device could achieve zero or near zero opacity. However, many of these measurements were determined using a continuous opacity monitor system (COMS). For this rule, we believe all of the facilities will measure opacity using a trained observer, who assigns opacity readings in 5 percent increments. The trained observer is certified to determine the opacity with a positive error of less than 7.5 percent opacity, and to observe 95 percent of the readings with a positive error of less than 5 percent opacity. To take into account this observer error, we have revised the final opacity limit to be less than 10 percent opacity when averaged over a six minute period.
Further, the 90 percent cover requirement is consistent with the standard procedures EPA has observed at existing paints and allied product manufacturing facilities. Some facilities are subject to similar 90 percent cover requirements under state or local regulations (for example, San Diego County). Based on our data, nearly all paints and allied product manufacturing facilities use lids on process vessels to prevent loss of product; this makes good business sense. Lid options include
We have also removed the requirement to conduct additional Method 9 tests every six months. In place of these semi-annual Method 9 tests, the final rule requires that a Method 22 visible emissions observation be conducted once per quarter. If this observation detects visible emissions for six minutes of the required 15 minute observation period, then a Method 203C test is required within one week. If the Method 203C test then detects an opacity greater than 10 percent, the corrective action and retesting within 15 days requirement that was in the proposed rule would apply. This information must also be included in the annual report. We believe that Method 22 provides a comparable approach to ensure that any emission control equipment is operating properly and HAP emissions are reduced. Method 22 is used to ensure the process and any emission control equipment is operating properly and is not generating excess emissions. Method 22 is comparable to Method 203C because both methods use the human eye to determine if visible emissions are observed from an industrial activity. Therefore, we believe that this approach reduces the burden of the semi-annual Method 9 testing that the commenters were concerned about, while also ensuring that the control devices are operating properly.
For dry PM control devices, one commenter recommends that the pressure drop across the system be monitored continuously using some type of manometer or pressure drop gauge to verify that the pressure drop is maintained within the range recommended by the manufacturer of the control device, which includes considerations based on the filter media employed, the method of filter media cleaning employed (if any), and the loading of the effluent stream being controlled. The commenter believes that wet PM control systems should be inspected on a frequency recommended by the control system manufacturer, and the frequency as well as the parameters to be monitored should be clearly
We agree that continuous monitoring of pressure drop can be used to ensure that the control system is operating properly; however, we also believe that the combination of the system integrity inspections and the visual emissions monitoring (discussed below) are sufficient for the source category and at a lower cost than installing, calibrating, and operating a continuous monitoring system (CMS). Inspections and visible emissions monitoring of the particulate control device system provide data indicative of a well-operated and maintained control device. The inspections will ensure there are no leaks in the duct work, while the visible emissions monitoring will ensure that the particulate control device is operating as intended, and that no excess emissions are emitted. Many of the paints and allied products manufacturing facilities are small businesses, and incorporating a continuous monitoring system would create an economic hardship on many of these businesses. Therefore, we have not incorporated the commenter's suggestion to require continuous monitoring of pressure drop. We also reviewed the graduated type of inspections and monitoring outlined in the NESHAP for Nine Metal Fabrication and Finishing Sources and believe that this type of inspection and monitoring program is not appropriate for the paints and allied products industry. Many of the nine metal fabrication and finishing facilities require continuous operation of the particulate control device. In contrast, the majority of paint and allied products are produced in batches and the operation of the particulate control device is expected to be intermittent. Therefore, we believe that the proposed inspection and monitoring requirements for the paints and allied products manufacturing industry are appropriate.
While the proposed rule included inspection requirements, it did not contain any provisions regarding required actions if problems were found during an inspection. We agree that such a requirement is needed to ensure that corrective action will be taken promptly. Therefore, we have incorporated the commenter's suggestion to require that corrective action be initiated as soon as practicable to mitigate any problems when system integrity is compromised and that the identified problem be fully corrected and documented within 15 days of first discovery.
However, we believe that section § 63.11603(b)(2)(ii), which requires that a statement in accordance with § 63.9(h) of the General Provisions to be signed by a responsible official, is sufficient to ensure compliance with the regulations, and that no additional requirement that a responsible official must certify that all requirements were met in a particular month by the 15th day of the following month is necessary. Therefore, the final rule does not include the latter certification requirement.
These revisions mean that a responsible official must annually certify that all requirements have been met. We believe that the annual certification by the responsible official is sufficient to ensure that the facility has complied with all of the requirements throughout the year, and that the additional burden of monthly certification is not warranted. In addition, we agree with the commenter that the submission of an Annual Compliance Certification and Deviation Report from facilities where deviations have occurred during the calendar year will assist regulated entities in maintaining compliance and will assist the regulatory agencies in compliance oversight.
Emission factor data from AP–42 were used to estimate VOC and PM emissions from model plants to estimate the capital and annual costs of control equipment for each of the model plants. The fraction of the AP–42 VOC and PM emissions that are HAP were calculated using the HAP/VOC mass fraction obtained from the facilities that reported both HAP and VOC emissions in the 2002 NEI database. Using the assumptions from the Regulatory Alternative Impacts memorandum (EPA–HQ–OAR–2008–0053–0073) regarding the number of facilities that are currently controlled, the emission factors from AP–42, and the HAP/VOC mass fractions from the 2002 NEI, the HAP emissions were estimated to be 4,591 tons per year. A comparison between the HAP emissions in the industry-reported NEI (4,761 tons/yr) and those estimated from AP–42 factors and HAP speciation profiles (4,591) supports EPA's use of the AP–42 factors for estimating emissions from the model plants, because the AP–42 factors result in a similar estimate of emissions as the NEI database.
We reviewed the SCCs and process descriptions in the 2002 NEI database and did not find any pigment manufacturing facilities. Therefore, no adjustments to the 2002 NEI data are needed.
We reviewed the 2002 NEI emissions data used to develop the baseline emissions for the paints and allied products source category and found that 60 of the 63 of emission data points used to estimate nickel emissions were from combustion sources and should not have been included in the baseline emissions. By removing these emission points, the total nickel emissions would be reduced by 0.028 tons per year, and the total estimated nickel emissions from the paints and allied products industry would be reduced by 0.070 tons per year. This decrease in nickel emissions would not significantly affect the total HAP emissions, which was estimated to be 4,761 tons per year, or the total listed HAP emissions which was estimated to be 221.3 tons per year. Therefore, we believe that revising the estimated baseline HAP emissions would have little or no impact on the cost effectiveness calculations.
We recognize that the paints and allied products manufacturing industry has reduced its urban HAP emissions over the past decades. The regulations
Another commenter states that to demonstrate that compliance with title V would be “unnecessarily burdensome,” EPA must show, inter alia, that the “burden” of compliance is unnecessary. According to the commenter, by promulgating title V, Congress plainly indicated that it viewed the burden imposed by its requirements as necessary as a general rule. The commenter says that these requirements provide many benefits that Congress clearly viewed as necessary. Thus, continues the commenter, EPA must show why for any given category, special circumstances make compliance unnecessary. The commenter maintains that EPA has not made that showing for any of the categories it proposes to exempt.
The four factors that EPA identified in the Exemption Rule for determining whether title V is unnecessarily burdensome on a particular area source category include: (1) Whether title V would result in significant improvements to the compliance requirements, including monitoring, recordkeeping, and reporting, that are proposed for an area source category (70 FR 75323); (2) whether title V permitting would impose significant burdens on the area source category and whether the burdens would be aggravated by any difficulty the sources may have in obtaining assistance from permitting agencies (70 FR 75324); (3) whether the costs of title V permitting for the area source category would be justified, taking into consideration any potential gains in compliance likely to occur for such sources (70 FR 75325); and (4) whether there are sufficient implementation and enforcement programs in place to assure compliance with the NESHAP for the area source category, without relying on title V permits (70 FR 75326).
In discussing the above factors in the Exemption Rule, we explained that we considered on “a case-by-case basis the extent to which one or more of the four factors supported title V exemptions for a given source category, and then we assessed whether considered together those factors demonstrated that compliance with title V requirements would be `unnecessarily burdensome' on the category, consistent with section 502(a) of the Act.”
The commenter asserts that “EPA must show * * * that the `burden' of compliance is unnecessary.” This is not, however, one of the four factors that we developed in the Exemption Rule in interpreting the term “unnecessarily burdensome” in CAA section 502, but rather a new test that the commenter maintains EPA “must” meet in determining what is “unnecessarily burdensome” under CAA section 502. EPA did not re-open its interpretation of the term “unnecessarily burdensome” in CAA section 502 in the June 1, 2009 proposed rule for the category at issue in this rule. Rather, we applied the four-factor balancing test articulated in the Exemption Rule to the source category. Had we sought to re-open our interpretation of the term “unnecessarily burdensome” in CAA section 502 and modify it from what was articulated in the Exemption Rule, we would have stated so in the June 1, 2009 proposed rule and solicited comments on a revised interpretation, which we did not do. Accordingly, we reject the commenter's attempt to create a new test for determining what constitutes “unnecessarily burdensome” under CAA section 502, as that issue falls outside the purview of this rulemaking.
Furthermore, we believe that the commenter's position that “EPA must show * * * that the “burden” of compliance is unnecessary” is unreasonable and contrary to Congressional intent concerning the applicability of title V to area sources. Congress intended to treat area sources differently under title V, as it expressly authorized the EPA Administrator to exempt such sources from the requirements of title V at her discretion. There are several instances throughout the CAA where Congress chose to treat major sources differently than non-major sources, as it did in CAA section 502. Moreover, although the commenter espouses a new interpretation of the term “unnecessarily burdensome” in CAA section 502 and attempts to create a new test for determining whether the requirements of title V are “unnecessarily burdensome” for an area source category, the commenter does not explain why EPA's interpretation of the term “unnecessarily burdensome” is arbitrary, capricious or otherwise not in accordance with law. We maintain that
EPA reasonably applied the four factors to the facts of the source category at issue in this rule, and the commenter has not identified any flaw in EPA's application of the four-factor test to the area source category at issue here. Moreover, as explained in the proposal, we considered implementation and enforcement issues in the fourth factor of the four-factor balancing test. Specifically, the fourth factor of EPA's unnecessarily burdensome analysis provides that EPA will consider whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP without relying on title V permits. See 70 FR 75326.
In applying the fourth factor here, EPA determined that there are adequate enforcement programs in place to assure compliance with the CAA. As stated in the proposal, we believe that state-delegated programs are sufficient to assure compliance with the NESHAP and that EPA retains authority to enforce this NESHAP under the CAA. 74 FR 26152. We also indicated that States and EPA often conduct voluntary compliance assistance, outreach, and education programs to assist sources, and that these additional programs will supplement and enhance the success of compliance with this NESHAP. 74 FR 26152. The commenter does not challenge the conclusion that there are adequate State and Federal programs in place to ensure compliance with and enforcement of the NESHAP. Instead, the commenter provides an unsubstantiated assertion that information about compliance by the area sources with these NESHAP will not be as accessible to the public as information provided to a State pursuant to title V. In fact, the commenter does not provide any information that States will treat information submitted under this NESHAP differently than information submitted pursuant to a title V permit.
Even accepting the commenter's assertions that it is more difficult for citizens to enforce the NESHAP absent a title V permit, in evaluating the fourth factor in EPA's balancing test EPA concluded that there are adequate implementation and enforcement programs in place to enforce the NESHAP. The commenter has provided no information to the contrary or explained how the absence of title V actually impairs the ability of citizens to enforce the provisions of the NESHAP.
The commenter asserts that “EPA argues that `the monitoring, recordkeeping, and reporting requirements in this proposed rule are sufficient to assure compliance with the requirements of the proposed rule.' ” We nowhere state or imply that the only monitoring, recordkeeping, and reporting required for the rule is in the form of recordkeeping. As stated in the proposal, we required daily, weekly, monthly, and yearly testing of particulate control devices, as well as annual compliance reports and deviation reports in addition to the recordkeeping that serves as monitoring for the particulate control devices. The commenter does not provide any evidence that contradicts the conclusion that the proposed monitoring, recordkeeping, and reporting requirements are sufficient to assure compliance with the standards in the rule.
Based on the foregoing, we considered whether title V monitoring, recordkeeping, and reporting requirements would lead to significant improvements in the monitoring, recordkeeping, and reporting requirements in the proposed NESHAP and determined that they would not. We believe that the monitoring, recordkeeping, and reporting requirements in this area source rule can assure compliance for those sources we are exempting.
For the reasons described above and in the proposed rule, the first factor supports an exemption. Assuming, for the sake of argument, that the first factor alone cannot support the exemption, the four-factor balancing test requires EPA to examine the factors, in combination, and determine whether the factors, viewed together, weigh in favor of exemption. See 70 FR 75326. As explained above, we determined that the factors, weighed together, support title V exemption for this source category.
As we have stated before, at proposal we found the burden placed on these sources in complying with the title V requirements is significant when we applied the four-factor balancing test. We note that the commenter, in other parts of comments on the title V exemptions, argues that EPA must demonstrate that every title V requirement is “unnecessary” for a particular source category before an exemption can be granted, but makes no mention of the “burden” of those requirements on area sources; here the commenter argues that “significant burden” is not appropriate for the second factor. Notwithstanding the commenter's inconsistency, as explained above, the four-factor balancing test was established in the Exemption Rule and we did not re-open EPA's interpretation of the term “unnecessarily burdensome” in this rule. As explained above, we maintain that the Agency's interpretation of the term “unnecessarily burdensome,” as set forth in the Exemption Rule and reiterated in the proposal to this rule, is reasonable.
Contrary to the commenter's assertions, we properly analyzed the second factor of the four-factor balancing test.
Therefore, we disagree with the commenter's assertion that EPA's finding (i.e., that the burden of obtaining a title V permit is significant, and does not equate to the required finding that the burden is unnecessary) is misplaced. While EPA could have found that the second factor alone could justify the exemption for the sources we are exempting in this rule, EPA found that the other three factors also support exempting these sources from the title V requirements because the permitting requirements are unnecessarily burdensome for the paints and allied products manufacturing area sources we are exempting.
First, EPA nowhere states, nor does it believe, that title V never confers additional compliance benefits, as the commenter asserts. While EPA recognizes that requiring a title V permit offers additional compliance options, the statute provides EPA with the discretion to evaluate whether compliance with title V would be unnecessarily burdensome to specific area sources. For the sources we are exempting, we conclude that requiring title V permits would be unnecessarily burdensome.
Second, the commenter mischaracterizes the first factor by asserting that EPA must demonstrate that title V will provide no additional compliance benefits. The first factor calls for a consideration of “whether title V would result in significant improvements to the compliance requirements, including monitoring, recordkeeping, and reporting, that are proposed for an area source category.” Thus, contrary to the commenter's assertion, the inquiry under the first factor is not whether title V will provide any compliance benefit, but rather whether it will provide significant improvements in compliance requirements.
The monitoring, recordkeeping and reporting requirements in the rule are sufficient to assure compliance with the requirements of this rule for the sources we are exempting, consistent with the goal in title V permitting. For example, in the Notification of Compliance Status report, the source must certify that, if necessary, it has implemented management practices and installed controls.
Third, the commenter incorrectly characterizes our statements in the proposed rule concerning our application of the third factor. Under the third factor, EPA evaluates “whether the costs of title V permitting for the area source category would be justified, taking into consideration any potential gains in compliance likely to occur for such sources.” Contrary to what the commenter alleges, EPA did not state in the proposed rule that compliance with title V would not yield any gains in compliance with the underlying requirements in the relevant NESHAP, nor does factor three require such a determination.Instead, consistent with the third factor, we considered whether the costs of title V are justified in light of any potential gains in compliance. In other words, EPA considers the costs of title V permitting requirements, including consideration of any improvement in compliance above what the rule requires. In considering the third factor, we stated, in part, that, “[b]ecause the costs, both economic and non-economic, of compliance with title V are high, and the potential for gains in compliance is low, title V permitting is not justified for this source category. Accordingly, the third factor supports title V exemptions for these area source categories.” See 74 FR 26152.
Most importantly, EPA considered all four factors in the balancing test in determining whether title V was unnecessarily burdensome on the area source category we are exempting from title V in this final rule. The commenter's statements do not demonstrate a flaw in EPA's application of the four-factor balancing test to the specific facts of the sources we are exempting, nor do the comments provide sufficient basis for the Agency to reconsider its.
In this comment, the commenter again takes issue with the Agency's test for determining whether title V is unnecessarily burdensome, as developed in the Exemption Rule. Our interpretation of the term “unnecessarily burdensome” is not the subject of this rulemaking. In any event, as explained above, we believe the Agency's interpretation of the term “unnecessarily burdensome” is a reasonable one. To the extent the commenter asserts that our application of the fourth factor is flawed, we disagree. The fourth factor involves a determination as to whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the rule without relying on the title V permits. In discussing the fourth factor in the proposal, EPA states that, prior to delegating implementation and enforcement to a State, EPA must ensure that the State has programs in place to enforce the rule. EPA believes that these programs will be sufficient to assure compliance with the rule. EPA also retains authority to enforce this NESHAP anytime under CAA sections 112, 113, and 114. EPA also noted other factors in the proposal that together are sufficient to assure compliance with this area source NESHAP. The commenter argues that EPA cannot exempt any of the area sources in these categories from title V permitting requirements because “[t]he agency does not identify any aspect of any of the underlying NESHAP showing that with respect to these specific NESHAP—
Furthermore, we disagree that the basis for excluding the paints and allied products manufacturing area sources we are exempting from title V requirements is generally applicable to sources in any source category. As explained in the proposal preamble and above, we balanced the four factors considering the facts and circumstances of the source category at issue in this rule. For example, in assessing whether the costs of requiring the sources to obtain a title V permit were burdensome, we concluded that the high relative costs would not be justified given that there is likely to be little or no potential gain in compliance based on the control device requirements and management practices of this rule.
In addition to determining that title V would be unnecessarily burdensome on the area source category, as in the Exemption Rule, EPA also considered, consistent with our interpretation of the legislative history, whether exempting the area source categories would adversely affect public health, welfare, or the environment. As explained in the proposal preamble, we concluded that exempting the area source category at issue in this rule would not adversely affect public health, welfare, or the environment because the level of control would be the same even if title V applied. We further explained in the proposal preamble that the title V permit program does not generally impose new substantive air quality control requirements on sources, but instead requires that certain procedural measures be followed, particularly with respect to determining compliance with applicable requirements. The commenter has not provided any information to demonstrate that the exemption from title V that we are finalizing will adversely affect public health, welfare, or the environment.
Existing paints and allied products manufacturing facilities have made significant emission reductions since 1990 through product reformulation, process and cleaning changes, installation of control equipment, and as a result of OSHA regulations. Affected sources appear to be well-controlled, and our GACT determination reflects such controls. We estimate that the only impacts associated with this rule are the capital and annual costs of installing and operating a particulate control device, the capital cost of adding lids or covers to process vessels, and the compliance requirements (i.e., reporting, recordkeeping, and testing).
We estimate that 21 percent of the facilities, or 460 area sources, will be required to install particulate control equipment. The total capital costs for installing particulate control devices is estimated to be $8.1 million and the annual cost is estimated to be $3.1 million per year.
We estimate that 110 facilities will be required to install lids or covers on their process, mixing, and storage vessels. We estimate that it will cost $38,000 in total capital costs and $5,500 annually. However, the rule will also provide a cost savings to these same facilities, because they will have more coatings product at the end of the manufacturing process.
The other affected facilities will incur costs only for submitting the notifications and for completing the annual compliance certification. The cost associated with recordkeeping and the one-time reporting requirements is estimated to be $147 per facility.
Through compliance with this rule, these facilities will reduce total PM emissions by 6,300 tons/yr (5,700 Mg/yr), total metal HAP emissions by 4.2 tons/yr (3.8 Mg/yr), and listed urban metal HAP (cadmium, chromium, lead, nickel) emissions by 1.6 tons/yr (1.5 Mg/yr). We estimate that requiring the use of covers on process vessels will reduce VOC emissions by 1,700 tons/yr (1,600 Mg/yr), volatile HAP emissions by 169 tons/yr (153 Mg/yr), and listed urban volatile HAP (benzene, methylene chloride) emissions by 4.3 tons/yr (3.9 Mg/yr).
This action is a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993), and is therefore subject to review under the Executive Order.
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under
The recordkeeping and reporting requirements in this final rule are based on the requirements in EPA's NESHAP General Provisions (40 CFR part 63, subpart A). The recordkeeping and reporting requirements in the General Provisions are mandatory pursuant to section 114 of the CAA (42 U.S.C. 7414). All information other than emissions data submitted to EPA pursuant to the information collection requirements for which a claim of confidentiality is made is safeguarded according to CAA section 114(c) and the Agency's implementing regulations at 40 CFR part 2, subpart B.
This final NESHAP requires Paints and Allied Products Manufacturing area sources to submit an Initial Notification and a Notification of Compliance Status according to the requirements in 40 CFR 63.9 of the General Provisions (subpart A). Records are required to demonstrate compliance with the opacity and visual emissions (VE) requirements. The owner or operator of a paints and allied products manufacturing facility also is subject to notification and recordkeeping requirements in 40 CFR 63.9 and 63.10 of the General Provisions (subpart A), although we have deemed that annual compliance reports are sufficient instead of semiannual reports.
The annual burden for this information collection averaged over the first three years of this ICR is estimated to be a total of 2,887 labor hours per year at a cost of $322,009 or approximately $147 per facility. The average annual reporting burden is almost 3 hours per response, with approximately 2 responses per facility for 730 respondents. There are no capital and operating and maintenance costs associated with the final rule requirements for existing sources. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. EPA displays OMB control numbers in various ways. For example, EPA lists OMB control numbers for EPA's regulations in 40 CFR part 9, which we amend periodically. Additionally, we may display the OMB control number in another part of the CFR, or in a valid
When this ICR is approved by OMB, the Agency will publish a
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
For the purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business that meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule is estimated to impact a total of almost 2,200 area source paints and allied products manufacturing facilities; over ninety percent of these facilities are estimated to be small entities. We have determined that small entity compliance costs, as assessed by the facilities' cost-to-sales ratio, are expected to be approximately 0.13 percent for the estimated 460 facilities that would not initially be in compliance. Although this final rule contains requirements for new area sources, we are not aware of any new area sources being constructed now or planned in the next 3 years, and consequently, we did not estimate any impacts for new sources.
Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce such impact. The standards represent practices and controls that are common throughout the paints and allied products manufacturing industry. The standards also require only the essential recordkeeping and reporting needed to demonstrate and verify compliance. These standards were developed in consultation with small business representatives on the state and national levels and the trade associations that represent small businesses.
This final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any one year. This rule is not expected to impact State, local, or tribal governments. The nationwide annualized cost of this rule for affected industrial sources is $3.1 million/yr. Thus, this rule would not be subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act (UMRA).
This final rule would also not be subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The rule would not apply to such governments and would impose no obligations upon them.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule does not impose any requirements on State and local governments. Thus, Executive Order 13132 does not apply to this final rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule imposes no requirements on tribal governments; thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Order has the potential to influence the regulation. This action is
This final rule is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects. Existing energy requirements for this industry would not be significantly impacted by the additional controls or other equipment that may be required by this rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. However, we identified no such standards, and none were brought to our attention in comments. Therefore, EPA has decided to use EPA Method 203C and EPA Method 22.
Under § 63.7(f) and § 63.8(f) of Subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the final rule and amendments.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule would not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule establishes national standards for the Paints and Allied Products Manufacturing area source category; this will reduce HAP emissions, therefore decreasing the amount of emissions to which all affected populations are exposed.
The Congressional Review Act, 5 U.S.C. 801,
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(a) You are subject to this subpart if you own or operate a facility that performs paints and allied products manufacturing that is an area source of hazardous air pollutant (HAP) emissions and processes, uses, or generates materials containing HAP, as defined in § 63.11607.
(b) The affected source consists of all paints and allied products manufacturing processes that process, use, or generate materials containing HAP at the facility.
(1) An affected source is existing if you commenced construction or reconstruction of the affected source on or before June 1, 2009.
(2) An affected source is new if you commenced construction or
(3) A facility becomes an affected source when you commence processing, using, or generating materials containing HAP, as defined in § 63.11607.
(c) You are exempt from the obligation to obtain a permit under 40 CFR part 70 or 40 CFR part 71, provided you are not otherwise required by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). Whether you have a title V permit or not, you must continue to comply with the provisions of this subpart.
(d) An affected source is no longer subject to this subpart if the facility no longer processes, uses, or generates materials containing HAP and does not plan to process, use or generate materials containing HAP in the future.
(e) The standards of this subpart do not apply to research and development facilities, as defined in section 112(c)(7) of the CAA.
(a) If you own or operate an existing affected source, you must achieve compliance with the applicable provisions in this subpart by December 3, 2012.
(b) If you own or operate a new affected source, you must achieve compliance with the applicable provisions of this subpart by December 3, 2009, or upon startup of your affected source, whichever is later.
(c) If you own or operate a facility that becomes an affected source in accordance with § 63.11599(b)(3) after the applicable compliance date in paragraphs (a) or (b) of this section, you must achieve compliance with the applicable provisions of this subpart by the date that you commence processing, using, or generating materials containing HAP, as defined in § 63.11607.
(a) For each new and existing affected source, you must comply with the requirements in paragraphs (a)(1) through (6) of this section. These requirements apply at all times.
(1) You must add the dry pigments and solids that contain compounds of cadmium, chromium, lead, or nickel and operate a capture system that minimizes fugitive particulate emissions during the addition of dry pigments and solids that contain compounds of cadmium, chromium, lead, or nickel to a process vessel or to the grinding and milling process.
(2) You must capture particulate emissions and route them to a particulate control device meeting the requirements of paragraph (a)(6) of this section during the addition of dry pigments and solids that contain compounds of cadmium, chromium, lead, or nickel to a process vessel. This requirement does not apply to pigments and other solids that are in paste, slurry, or liquid form.
(3)
(ii) Add pigments and other solids that contain compounds of cadmium, chromium, lead, or nickel only in paste, slurry, or liquid form.
(4)
(ii) Add pigments and other solids that contain compounds of cadmium, chromium, lead, or nickel to the grinding and milling process only in paste, slurry, or liquid form.
(5)
(ii) Fully enclose the grinding and milling equipment during the grinding and milling of materials containing compounds of cadmium, chromium, lead, or nickel; or
(iii) Ensure that the pigments and solids are in the solution during the grinding and milling of materials containing compounds of cadmium, chromium, lead, or nickel.
(6) The visible emissions from the particulate control device exhaust must not exceed 10-percent opacity for particulate control devices that vent to the atmosphere. This requirement does not apply to particulate control devices that do not vent to the atmosphere.
(7) [RESERVED]
(b) For each new and existing affected source, you must comply with the requirements in paragraphs (b)(1) through (5) of this section.
(1) Process and storage vessels that store or process materials containing benzene or methylene chloride, except for process vessels which are mixing vessels, must be equipped with covers or lids meeting the requirements of paragraphs (b)(1)(i) through (iii) of this section.
(i) The covers or lids can be of solid or flexible construction, provided they do not warp or move around during the manufacturing process.
(ii) The covers or lids must maintain contact along at least 90-percent of the vessel rim. The 90-percent contact requirement is calculated by subtracting the length of any visible gaps from the circumference of the process vessel, and dividing this number by the circumference of the process vessel. The resulting ratio must not exceed 90-percent.
(iii) The covers or lids must be maintained in good condition.
(2) Mixing vessels that store or process materials containing benzene or methylene chloride must be equipped with covers that completely cover the vessel, except as necessary to allow for safe clearance of the mixer shaft.
(3) All vessels that store or process materials containing benzene or methylene chloride must be kept covered at all times, except for quality control testing and product sampling, addition of materials, material removal, or when the vessel is empty. The vessel is empty if:
(i) All materials containing benzene or methylene chloride have been removed that can be removed using the practices commonly employed to remove materials from that type of vessel, e.g., pouring, pumping, and aspirating; and
(ii) No more than 2.5 centimeters (one inch) depth of residue remains on the bottom of the vessel, or no more than 3 percent by weight of the total capacity of the vessel remains in the vessel.
(4) Leaks and spills of materials containing benzene or methylene chloride must be minimized and cleaned up as soon as practical, but no longer than 1 hour from the time of detection.
(5) Rags or other materials that use a solvent containing benzene or methylene chloride for cleaning must be kept in a closed container. The closed container may contain a device that allows pressure relief, but does not allow liquid solvent to drain from the container.
(a) For each new and existing affected source, you must demonstrate initial
(1) Initial particulate control device inspections and tests. You must conduct an initial inspection of each particulate control device according to the requirements in paragraphs (a)(1)(i) through (iii) of this section and perform a visible emissions test according to the requirements of paragraph (a)(1)(iv) of this section. You must record the results of each inspection and test according to paragraph (b) of this section and perform corrective action where necessary.You must conduct each inspection no later than 180 days after your applicable compliance date for each control device which has been operated within 60 days following the compliance date. For a control device which has not been installed or operated within 60 days following the compliance date, you must conduct an initial inspection prior to startup of the control device.
(i) For each wet particulate control system, you must verify the presence of water flow to the control equipment. You must also visually inspect the system ductwork and control equipment for leaks and inspect the interior of the control equipment (if applicable) for structural integrity and the condition of the control system.
(ii) For each dry particulate control system, you must visually inspect the system ductwork and dry particulate control unit for leaks. You must also inspect the inside of each dry particulate control unit for structural integrity and condition.
(iii) An initial inspection of the internal components of a wet or dry particulate control system is not required if there is a record that an inspection meeting the requirements of this subsection has been performed within the past 12 months and any maintenance actions have been resolved.
(iv) For each particulate control device, you must conduct a visible emission test consisting of three 1-minute test runs using Method 203C (40 CFR part 51, appendix M). The visible emission test runs must be performed during the addition of dry pigments and solids containing compounds of cadmium, chromium, lead, or nickel to a process vessel or to the grinding and milling equipment. If the average test results of the visible emissions test runs indicate an opacity greater than the applicable limitation in § 63.11601(a), you must take corrective action and retest within 15 days.
(2) Ongoing particulate control device inspections and tests. Following the initial inspections, you must perform periodic inspections of each PM control device according to the requirements in paragraphs (a)(2)(i) or (ii) of this section. You must record the results of each inspection according to paragraph (b) of this section and perform corrective action where necessary. You must also conduct tests according to the requirements in paragraph (a)(2)(iii) of this section and record the results according to paragraph (b) of this section.
(i) You must inspect and maintain each wet particulate control system according to the requirements in paragraphs (a)(2)(i)(A) through (C) of this section.
(A) You must conduct a daily inspection to verify the presence of water flow to the wet particulate control system.
(B) You must conduct weekly visual inspections of any flexible ductwork for leaks.
(C) You must conduct inspections of the rigid, stationary ductwork for leaks, and the interior of the wet control system (if applicable) to determine the structural integrity and condition of the control equipment every 12 months.
(ii) You must inspect and maintain each dry particulate control unit according to the requirements in paragraphs (a)(2)(ii)(A) and (B) of this section.
(A) You must conduct weekly visual inspections of any flexible ductwork for leaks.
(B) You must conduct inspections of the rigid, stationary ductwork for leaks, and the interior of the dry particulate control unit for structural integrity and to determine the condition of the fabric filter (if applicable) every 12 months.
(iii) For each particulate control device, you must conduct a 5-minute visual determination of emissions from the particulate control device every 3 months using Method 22 (40 CFR part 60, appendix A–7). The visible emission test must be performed during the addition of dry pigments and solids containing compounds of cadmium, chromium, lead, or nickel to a process vessel or to the grinding and milling equipment. If visible emissions are observed for two minutes of the required 5-minute observation period, you must conduct a Method 203C (40 CFR part 51, appendix M) test within 15 days of the time when visible emissions were observed. The Method 203C test will consist of three 1-minute test runs and must be performed during the addition of dry pigments and solids containing compounds of cadmium, chromium, lead, or nickel HAP to a process vessel or to the grinding and milling equipment. If the Method 203C test runs indicates an opacity greater than the limitation in § 63.11601(a)(4), you must comply with the requirements in paragraphs (a)(2)(iii)(A) through (C) of this section.
(A) You must take corrective action and retest using Method 203C within 15 days. The Method 203C test will consist of three 1-minute test runs and must be performed during the addition of dry pigments and solids containing compounds of cadmium, chromium, lead, or nickel to a process vessel or to the grinding and milling equipment. You must continue to take corrective action and retest each 15 days until a Method 203C test indicates an opacity equal to or less than the limitation in § 63.11601(a)(6).
(B) You must prepare a deviation report in accordance with § 63.11603(b)(3) for each instance in which the Method 203C opacity results were greater than the limitation in § 63.11601(a)(6).
(C) You must resume the visible determinations of emissions from the particulate control device in accordance with paragraph (a)(2)(iii) of this section 3 months after the previous visible determination.
(b) You must record the information specified in paragraphs (b)(1) through (6) of this section for each inspection and testing activity.
(1) The date, place, and time;
(2) Person conducting the activity;
(3) Technique or method used;
(4) Operating conditions during the activity;
(5) Results; and
(6) Description of correction actions taken.
(a)
(1) Initial Notification of Applicability. If you own or operate an existing affected source, you must submit an initial notification of applicability required by § 63.9(b)(2) no later than June 1, 2010. If you own or operate a new affected source, you must submit an initial notification of applicability required by § 63.9(b)(2) no later than 180 days after initial start-up of the operations or June 1, 2010, whichever is later. The notification of applicability must include the information specified in paragraphs (a)(1)(i) through (iii) of this section.
(i) The name and address of the owner or operator;
(ii) The address (i.e., physical location) of the affected source; and
(iii) An identification of the relevant standard, or other requirement, that is the basis of the notification and the source's compliance date.
(2)
(i) Your company's name and address;
(ii) A statement by a responsible official with that official's name, title, phone number, e-mail address and signature, certifying the truth, accuracy, and completeness of the notification, a description of the method of compliance (i.e., compliance with management practices, installation of a wet or dry scrubber) and a statement of whether the source has complied with all the relevant standards and other requirements of this subpart.
(b)
(1)
(i) The first annual compliance certification report must cover the first annual reporting period which begins the day of the compliance date and ends on December 31.
(ii) Each subsequent annual compliance certification report must cover the annual reporting period from January 1 through December 31.
(iii) Each annual compliance certification report must be prepared no later than January 31 and kept in a readily-accessible location for inspector review. If a deviation has occurred during the year, each annual compliance certification report must be submitted along with the deviation report, and postmarked no later than February 15.
(2)
(i) Company name and address;
(ii) A statement in accordance with § 63.9(h) of the General Provisions that is signed by a responsible official with that official's name, title, phone number, e-mail address and signature, certifying the truth, accuracy, and completeness of the notification and a statement of whether the source has complied with all the relevant standards and other requirements of this subpart; and
(iii) Date of report and beginning and ending dates of the reporting period. The reporting period is the 12-month period beginning on January 1 and ending on December 31.
(3)
(c)
(1) As required in § 63.10(b)(2)(xiv), you must keep a copy of each notification that you submitted in accordance with paragraph (a) of this section, and all documentation supporting any Notification of Applicability and Notification of Compliance Status that you submitted.
(2) You must keep a copy of each Annual Compliance Certification Report prepared in accordance with paragraph (b) of this section.
(3) You must keep records of all inspections and tests as required by § 63.11602(b).
(4) Your records must be in a form suitable and readily available for expeditious review, according to § 63.10(b)(1).
(5) As specified in § 63.10(b)(1), you must keep each record for 5 years following the date of each recorded action.
(6) You must keep each record onsite for at least 2 years after the date of each recorded action according to § 63.10(b)(1). You may keep the records offsite for the remaining 3 years.
(e) If you no longer process, use, or generate materials containing HAP after December 3, 2009, you must submit a Notification in accordance with § 63.11599(d), which must include the information specified in paragraphs (e)(1) and (2) of this section.
(1) Your company's name and address;
(2) A statement by a responsible official indicating that the facility no longer processes, uses, or generates materials containing HAP, as defined in § 63.11607, and that there are no plans to process, use or generate such materials in the future. This statement should also include the date by which the company ceased using materials containing HAP, as defined in 63.11607, and the responsible official's name, title, phone number, e-mail address and signature.
Table 1 of this subpart shows which parts of the General Provisions in §§ 63.1 through 63.16 apply to you.
(a) This subpart can be implemented and enforced by the U.S. EPA or a delegated authority such as a state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to a State, local, or tribal agency pursuant to 40 CFR part 63, subpart E, then that Agency has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if this subpart is delegated to your state, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under 40 CFR part 63, subpart E, the authorities contained in paragraphs (b)(1) through (4) of this section are retained by the Administrator of the U.S. EPA and are not transferred to the State, local, or tribal agency.
(1) Approval of an alternative nonopacity emissions standard under § 63.6(g).
(2) Approval of a major change to test methods under § 63.7(e)(2)(ii) and (f). A “major change to test method” is defined in § 63.90
(3) Approval of a major change to monitoring under § 63.8(f). A “major change to monitoring” is defined in § 63.90.
(4) Approval of a major change to recordkeeping/reporting under § 63.10(f). A “major change to recordkeeping/reporting” is defined in § 63.90. As required in § 63.11432, you must comply with the requirements of the NESHAP General Provisions (40 CFR part 63, subpart A) as shown in the following table.
Terms used in this subpart are defined in the Clean Air Act, § 63.2, and in this section as follows:
(1) Fails to meet any requirement or management practices established by this subpart;
(2) Fails to meet any term or condition that is adopted to implement a requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emissions limitation or management practice in this subpart.
(1) The manufacture of products that do not leave a dried film of solid material on the substrate, such as thinners, paint removers, brush cleaners, and mold release agents;
(2) The manufacture of electroplated and electroless metal films;
(3) The manufacture of raw materials, such as resins, pigments, and solvents used in the production of paints and coatings; and
(4) Activities by end users of paints or allied products to ready those materials for application.
(1) For a corporation: A president, secretary, treasurer, or vice president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities and either:
(i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or
(ii) The delegation of authority to such representative is approved in advance by the Administrator.
(2) For a partnership or sole proprietorship: A general partner or the proprietor, respectively.
(3) For a municipality, State, Federal, or other public agency: Either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of the EPA).
(4) For affected sources (as defined in this part) applying for or subject to a title V permit: “Responsible official” shall have the same meaning as defined in part 70 or Federal title V regulations in this chapter (42 U.S.C. 7661), whichever is applicable.
(1) Vessels permanently attached to motor vehicles such as trucks, railcars, barges, or ships;
(2) Pressure vessels designed to operate in excess of 204.9 kilopascals and without emissions to the atmosphere;
(3) Vessels storing volatile liquids that contain HAP only as impurities;
(4) Wastewater storage tanks; and
(5) Process vessels.
As required in § 63.11599, you must meet each requirement in the following table that applies to you. Part 63 General Provisions that apply for Paints and Allied Products Manufacturing Area Sources: