Aging Administration
Agricultural Research Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
National Foundation on the Arts and the Humanities
National Security Agency/Central Security Service
Foreign–Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
National Security Agency/Central Security Service
Navy Department
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Agency for Healthcare Research and Quality
Aging Administration
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
Transportation Security Administration
Fish and Wildlife Service
Land Management Bureau
National Park Service
Alcohol, Tobacco, Firearms, and Explosives Bureau
Employee Benefits Security Administration
Employment and Training Administration
Occupational Safety and Health Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Transportation Security Administration
Internal Revenue Service
Thrift Supervision Office
United States Mint
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
National Endowment for the Humanities, National Foundation on the Arts and the Humanities.
Final rule.
The National Endowment for the Humanities (NEH) is removing its regulation implementing the Governmentwide common rule on drug-free workplace requirements for financial assistance, currently located within Part 1173 of Title 45 of the Code of Federal Regulations (CFR), and issuing a new regulation to adopt the Office of Management and Budget (OMB) guidance at 2 CFR part 182. This regulatory action implements the OMB's initiative to streamline and consolidate into one title of the CFR all Federal regulations on drug-free workplace requirements for financial assistance. These changes constitute an administrative simplification that would make no substantive change in NEH's policy or procedures for drug-free workplace.
This final rule is effective on October 29, 2010 without further action. Submit comments by September 29, 2010 on any unintended changes this action makes in NEH policies and procedures for drug-free workplace. All comments on unintended changes will be considered and, if warranted, NEH will revise the rule.
You may submit comments by either one of the following methods: e-mail:
Susan G. Daisey at 202–606–8494 or e-mail her at
The Drug-Free Workplace Act of 1988 [Pub. L. 100–690, Title V, Subtitle D; 41 U.S.C. 701,
The agencies proposed an update to the drug-free workplace common rule in 2002 [67 FR 3266, January 23, 2002] and finalized it in 2003 [68 FR 66534, November 26, 2003]. The updated common rule was redrafted in plain language and adopted as a separate part, independent from the common rule on nonprocurement suspension and debarment. Based on an amendment to the drug-free workplace requirements in 41 U.S.C. 702 [Pub. L. 105–85, div. A, title VIII, Sec. 809, Nov. 18, 1997, 111 Stat. 1838], the update also allowed multiple enforcement options from which agencies could select, rather than requiring use of a certification in all cases.
When it established Title 2 of the CFR as the new central location for OMB guidance and agency implementing regulations concerning grants and agreements [69 FR 26276, May 11, 2004], OMB announced its intention to replace common rules with OMB guidance that agencies could adopt in brief regulations. OMB began that process by proposing [70 FR 51863, August 31, 2005] and finalizing [71 FR 66431, November 15, 2006] Governmentwide guidance on nonprocurement suspension and debarment in 2 CFR part 180.
As the next step in that process, OMB proposed for comment [73 FR 55776, September 26, 2008] and finalized [74 FR 28149, June 15, 2009] Governmentwide guidance with policies and procedures to implement drug-free workplace requirements for financial assistance. The guidance requires each agency to replace the common rule on drug-free workplace requirements that the agency previously issued in its own CFR title with a brief regulation in 2 CFR adopting the Governmentwide policies and procedures. One advantage of this approach is that it reduces the total volume of drug-free workplace regulations. A second advantage is that it collocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.
As the OMB guidance requires, NEH is taking two regulatory actions. First, we are removing the drug-free workplace common rule from 45 CFR part 1173. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR part 3373 to adopt the Governmentwide policies and procedures in the OMB guidance.
Taken together, these regulatory actions are solely an administrative simplification and are not intended to make any substantive change in policies or procedures. In soliciting comments on these actions, we therefore are not seeking to revisit substantive issues that were resolved during the development of the final common rule in 2003. We are inviting comments specifically on any unintended changes in substantive content that the new part in 2 CFR would make relative to the common rule at 45 CFR part 1173.
Under the Administrative Procedure Act (5 U.S.C. 553), agencies generally propose a regulation and offer interested parties the opportunity to comment before it becomes effective. However, as described in the “Background” section of this preamble, the policies and procedures in this regulation have been proposed for comment two times—one time by Federal agencies as a common rule in 2002 and a second time by OMB as guidance in 2008—and adopted each time after resolution of the comments received.
This direct final rule is solely an administrative simplification that would make no substantive change in NEH
Accordingly, we find that the solicitation of public comments on this direct final rule is unnecessary and that “good cause” exists under 5 U.S.C. 553(b)(B) and 553(d) to make this rule effective on October 29, 2010 without further action, unless we receive adverse comment by September 29, 2010. If any comment on unintended changes is received, it will be considered and, if warranted, we will publish a timely revision of the rule.
OMB has determined this rule to be not significant for purposes of E.O. 12866.
This regulatory action will not have a significant adverse impact on a substantial number of small entities.
This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and Tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.
This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. 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.
Administrative practice and procedure, Drug abuse, Grant programs, Reporting and recordkeeping requirements.
Administrative practice and procedure, Drug abuse, Grant programs, Reporting and recordkeeping requirements.
41 U.S.C. 701–707.
This part requires that the award and administration of NEH grants and cooperative agreements comply with Office of Management and Budget (OMB) guidance implementing the portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701–707, as amended, hereafter referred to as “the Act”) that applies to grants. It thereby—
(a) Gives regulatory effect to the OMB guidance (Subparts A through F of 2 CFR part 182) for the NEH's grants and cooperative agreements; and
(b) Establishes NEH policies and procedures for compliance with the Act that are the same as those of other Federal agencies, in conformance with the requirement in 41 U.S.C. 705 for Governmentwide implementing regulations.
This part and, through this part, pertinent portions of the OMB guidance in Subparts A through F of 2 CFR part 182 (
(a) Recipient of a NEH grant or cooperative agreement; or
(b) NEH awarding official.
(a)
(b)
(c)
A recipient other than an individual that is required under 2 CFR 182.225(a) to notify Federal agencies about an employee's conviction for a criminal drug offense must notify the Director, Office of Grant Management, NEH.
A recipient who is an individual and is required under 2 CFR 182.300(b) to notify Federal agencies about a conviction for a criminal drug offense must notify the Director, Office of Grant Management, NEH.
To obtain a recipient's agreement to comply with applicable requirements in the OMB guidance at 2 CFR part 182, you must include the following term or condition in the award:
The NEH General Counsel is the agency official authorized to make the determination under 2 CFR 182.500.
The NEH General Counsel is the agency official authorized to make the determination under 2 CFR 182.505.
Federal Aviation Administration, DOT.
Final rule; approval of the information collection.
This document announces Office of Management and Budget's (OMB's) approval of the information collection requirement contained in the FAA's final rule, “Re-Registration and Renewal of Aircraft Registration,” which was published on July 20, 2010.
The FAA received OMB approval for the information collection requirements in 14 CFR part 47 on August 16, 2010. The rule becomes effective on October 1, 2010.
John G. Bent, Civil Aviation Registry, Mike Monroney Aeronautical Center, 6500 South MacArthur Boulevard, Oklahoma City, OK 73169; telephone: (405) 954–4331.
On July 20, 2010, the FAA published the final rule, “Re-Registration and Renewal of Aircraft Registration” (75 FR 41968). Over a 3-year period, this rule will terminate the registration of all aircraft registered before October 1, 2010, and will require the re-registration of each aircraft to retain U.S. civil aircraft status. The rule also establishes a system for a 3-year recurrent expiration and renewal of registration for all aircraft issued a registration certificate on or after October 1, 2010. The final rule amends the FAA's regulations to provide standards for the timely cancellation of registration (N-numbers) for unregistered aircraft. This final rule makes other minor changes to establish consistency and ensure the regulations conform to statute or current Registry practices. The amendments will improve the accuracy of the Civil Aviation Registry.
The rule contained information collection requirements that had not yet been approved by the Office of Management and Budget at the time of publication. In accordance with the Paperwork Reduction Act, OMB approved that request on August 16, 2010, and assigned the information collection OMB Control Number 2120–0729. The FAA request was approved by OMB for a term of 18 months and expires on February 29, 2010. This notice is being published to inform affected parties of the approval of the information collection requirements of 14 CFR part 47.
Federal Aviation Administration (FAA), DOT.
Issuance of final Airworthiness Design Standards.
This Airworthiness Design Standard is issued to OHA, Inc., for certification under primary category regulations of modified Cessna 172I, 172K, 172L, and 172M airplanes.
This Airworthiness Design Standard is effective September 29, 2010.
Mr. Leslie B. Taylor, Aerospace Engineer, Standards Office (ACE–111), Small Airplane Directorate, Aircraft Certification Service, FAA; telephone number (816) 329–4134, fax number (816) 329–4090, e-mail at
Any person may obtain a copy of this information by contacting the person named above under
The “primary” category for aircraft was created specifically for the simple, low performance personal aircraft. Section 21.17(f) provides a means for applicants to propose airworthiness standards for their particular primary category aircraft. The FAA procedure establishing appropriate airworthiness standards includes reviewing and possibly revising the applicant's proposal, publication of the submittal in the
Existence of Proposed Airworthiness Design Standards for Acceptance Under the Primary Category Rule; Orlando Helicopter Airways (OHA), Inc., Models Cessna 172I, 172K, 172L, and 172M airplanes was published in the
As discussed above, these airworthiness design standards under the primary category rule are applicable to the C172I, C172K, C172L, and C172M. Should OHA, Inc., wish to apply these airworthiness design standards to other airplane models, OHA, Inc. must submit a new airworthiness design standard application under the primary rule category.
This action affects only certain airworthiness design standards on Cessna model C172I, C172K, C172L, C172M airplanes. It is not a standard of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
The authority citation for these airworthiness standards is as follows:
49 U.S.C. 106(g), 40113 and 44701.
For all airplane modifications and the powerplant installation:
Part 3 of the Civil Air Regulations (CAR 3), effective November 1, 1949, as amended by Amendments 3–1 through 3–12, except for § 3.415, Engines and § 3.416(a), Propellers; and 14 CFR part 23, §§ 23.603, 23.863, 23.907, 23.961, 23.1322 and 23.1359 (latest amendments through Amendment 23–59) as applicable to these airplanes.
For engine assembly certification:
Joint Aviation Requirements 22 (JAR 22), “Sailplanes and Powered Sailplanes,” Change 5, dated October 28, 1995, Subpart H only.
For propeller certification:
14 CFR part 35 as amended through Amendment 35–8 except § 35.1 (or a propeller with an FAA type certificate may be used).
For noise standards:
14 CFR part 36, Amendment 36–28, Appendix G.
Department of the Navy, DoD.
Interim final rule.
The Department of the Navy (DON) is amending its rules to update existing sections relating to the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General (JAG) for clients with diminished capacity. The amendment comports with current policy reflected in JAG Instruction 5803.1 (Series), Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General.
The new rule allows a covered attorney to take preventative action when the attorney reasonably believes that a client has diminished capacity and is at risk of substantial physical harm to himself or herself unless immediate action is taken. Not having this immediate change negatively impacts an attorney's ability to preserve life when a client expresses the intent to harm himself or herself or an attorney receives information about a client's suicidal intentions. The JAG has directed that this change take effect immediately as the former version of the rule potentially created a professional responsibility violation if an attorney acted to preserve life or risked the client's life.
This interim final rule is effective August 30, 2010. Written comments received at the address indicated below by October 29, 2010 will be considered and addressed in the final rule.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods:
Lieutenant Commander Janelle M. Beal, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone: 703–614–7403.
The Department of the Navy is amending 32 CFR part 776, to comport with current policy as stated in JAG Instruction 5803.1 (Series) governing the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General for clients with diminished capacity. This rule updates the existing section to reflect the current policy of the Judge Advocate General to permit a covered attorney to take protective action and disclose a client's condition when he or she reasonably believes that the client has diminished capacity and is at risk of substantial physical self-harm if action is not taken. Thus, aligning the policy with ABA Model Rules of Professional Conduct (2010), Rule 1.14 (Client with Diminished Capacity). Interested persons are invited to comment in writing on this amendment. All written comments received will be considered in finalizing the amendment to 32 CFR part 776. It has been determined that this rule amendment is not a major rule within the criteria specified in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public.
It has been determined that 32 CFR Part 776 is not a significant regulatory action. The rule does not:
(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 safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
It has been certified that 32 CFR part 776 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that 32 CFR part 776 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
It has been certified that 32 CFR Part 776 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Rules of Professional Conduct, and Complaint Processing Procedures.
10 U.S.C. 806, 806a, 826, 827.
(a)
(2) When the covered attorney reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the covered attorney may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client.
(3) Information relating to the representation of a client with diminished capacity is protected by § 776.25 of this part. When taking protective action pursuant to paragraph (a)(2) of this section, the covered attorney is impliedly authorized under § 776.25 of this part to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
(b) [Reserved]
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–2820, or (e-mail)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
The Audio Division, at the request of Prescott Valley Radio Broadcasting Company, Inc., substitutes FM Channel 247B for Channel 239B at Blythe, California. Channel 247B can be allotted at Blythe, consistent with the minimum distance separation requirements of the Commission's rules, at coordinates 33–37–02 NL and 114–35–20 WL, with a site restriction of 1.0 km (.61 miles) northeast of the community. The Government of Mexico has conveyed its concurrence in the
Effective September 30, 2010.
Deborah Dupont, Media Bureau, (202) 418–2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Fish and Wildlife Service, Interior.
Final rule.
This rule prescribes final early-season frameworks from which the States, Puerto Rico, and the Virgin Islands may select season dates, limits, and other options for the 2010–11 migratory bird hunting seasons. Early seasons are those that generally open prior to October 1, and include seasons in Alaska, Hawaii, Puerto Rico, and the Virgin Islands. The effect of this final rule is to facilitate the selection of hunting seasons by the States and Territories to further the annual establishment of the early-season migratory bird hunting regulations.
This rule takes effect on August 30, 2010.
States and Territories should send their season selections to: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, ms MBSP–4107–ARLSQ, 1849 C Street, NW., Washington, DC 20240. You may inspect comments during normal business hours at the Service's office in room 4107, 4501 N. Fairfax Drive, Arlington, Virginia, or at
Robert Blohm, Chief, or Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358–1714.
On May 13, 2010, we published in the
On June 10, 2010, we published in the
On June 23 and 24, 2010, we held open meetings with the Flyway Council Consultants where the participants reviewed information on the current status of migratory shore and upland game birds and developed recommendations for the 2010–11 regulations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands, special September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl as it relates to the development and selection of the regulatory packages for the 2010–11 regular waterfowl seasons.
On July 29, 2010, we published in the
This document is the fifth in a series of proposed, supplemental, and final rulemaking documents. It establishes final frameworks from which States may select season dates, shooting hours, and daily bag and possession limits for the 2010–11 season. These selections will be published in the
The preliminary proposed rulemaking, which appeared in the May 13
The Animal Legal Defense Fund (ALDF) urged us to reduce bag limits and institute a hunting moratorium for those species potentially affected by the Deepwater Horizon oil spill.
Regarding the use of abbreviated public comment periods for these rules, the rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published in May, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. Any delays in either extending public comment periods or in the effective date of these regulations after this final rulemaking would seriously compromise the States abilities to implement these decisions. States would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions.
Regarding the Deepwater Horizon oil spill, the release of oil into the Gulf of Mexico following the explosion and sinking of the Deepwater Horizon mobile offshore drilling unit and impacts to Gulf wetlands and wildlife has led to concerns about the potential for increased mortality in waterfowl and other migratory game birds, particularly in the fall and winter when local populations increase. This potential for increased mortality of migrating and wintering game birds has led to further questions regarding the need to impose precautionary regulatory restrictions in anticipation of increased spill-related mortality. However, it is important to remember that waterfowl migration and habitat use are highly variable from year to year, not only at the Flyway level but at regional and local levels, and dependent on any number of environmental factors. It is also important to recognize that populations of many species of North American waterfowl naturally undergo large population fluctuations in response to variability in breeding habitat conditions across their range, especially within the important prairie-parkland region. In fact, during the drought-stricken years of the 1980s and early 1990s, many North American waterfowl species declined to population sizes less than one-half those recently experienced as a result of natural declines in productivity and ongoing mortality.
Fortunately, waterfowl management has a rich and successful history of monitoring and assessment programs which provide annual updates on the status and health of waterfowl populations. Programs such as the May aerial breeding population survey, the continental bird banding program, the mid-winter waterfowl surveys, and the hunter harvest surveys, among others, all provide important pieces of information on the population status, productivity, and distribution of important waterfowl species. These data are integral in the process of establishing hunting regulations for waterfowl and other migratory game birds. Through the Adaptive Harvest Management process we currently utilize to establish waterfowl seasons, and other associated species-specific harvest strategies, monitoring and assessment data are explicitly linked to regulatory decision making, ensuring that appropriate regulatory actions will be taken if warranted by changes in continental population status. Therefore, from both a National and Flyway harvest-management perspective, we intend to respond to the Deepwater Horizon oil spill as we would any other non-hunting factor with potentially substantial effects on mortality or reproduction (e.g., hurricane, disease, prairie drought, habitat loss), by monitoring abundance and vital rates of waterfowl and other migratory game birds and adjusting harvest regulations as needed on the basis of existing harvest strategies. We believe this is the most prudent course of action, and further, firmly believe that our existing monitoring and assessment programs are sufficient to help safeguard the long-term conservation of any potentially-affected waterfowl or other migratory game birds.
Recently obtained results of annual spring waterfowl population surveys indicate that population sizes of most duck species and breeding habitat conditions are good this year. While we believe that regulatory restrictions are currently unnecessary, we remain very concerned about both the short and long-term impacts of the oil spill on migratory birds, their habitats, and the resources upon which birds depend. There remains considerable uncertainty regarding the short-term and long-term impacts this spill will have on waterfowl and other migratory game birds that utilize the impacted region during all or part of their annual life cycle. We have been heavily engaged in the immediate response to the BP oil
Simultaneous with immediate response efforts, we are also working with partners to assess potential pathways for long-term acute and sub-lethal effects of the BP oil spill on the full suite of migratory birds utilizing Gulf (or other impacted) habitats during some portion of their life cycle. Effects may result from direct exposure of birds to oil or to the long-term accumulation of polycyclic aromatic hydrocarbons or other toxins at levels sufficient to cause physiological disorders impacting productivity or survival. The intent of this assessment is to assist in identifying potential mitigation and conservation measures as well as long-term monitoring and assessment needs for migratory birds.
Regardless of the eventual impact of the BP oil spill on migratory game birds, we recognize the importance of working with the States as well as other governmental and non-governmental conservation partners to ensure that reasonable and science-based measures are implemented in the face of the ongoing crisis in the Gulf, and that the rationale for decisions regarding harvest regulations or other actions are clearly communicated to the public. We will continue to do so.
Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy; (B) Regulatory Alternatives, including specification of framework dates, season lengths, and bag limits; (C) Zones and Split Seasons; and (D) Special Seasons/Species Management. The categories correspond to previously published issues/discussions, and only those containing substantial recommendations are discussed below.
The Mississippi Flyway Council's request to include an assessment of potential teal harvest opportunities for production States in the ongoing teal assessment, and the additional work associated with this request, would likely delay the completion of our original task. As we noted above, the original purpose of this assessment was to assess the harvest potential of the three teal species. The Council's request would entail not only an evaluation of the potential effects of production States' teal harvest on those species, but the possibility of impacts to nontarget species as well. However, we understand the production States' concern about teal harvest opportunities. Therefore, we will compile information and analyses from historic reports that address teal seasons and, particularly, issues related to duck harvests from production and non-production States, and provide them to the Flyways for consideration during the upcoming winter flyway meetings. The intent of this review would be to summarize historical analyses and dialogue regarding the issue of early-season teal harvest opportunities in production States and provide a common understanding of the issues that would have to be reconsidered to fully address the Mississippi Flyway Council's recommendation. With this information, the Flyways could more fully assess how they may want to approach teal harvest opportunities for their States in the future, following completion of the current teal assessment.
Regarding the regulations for this year, utilizing the criteria developed for the teal season harvest strategy, this year's estimate of 6.3 million blue-winged teal from the traditional survey area indicates that a 16-day September teal season in the Atlantic, Central, and Mississippi Flyways is appropriate for 2010.
The Central Flyway Council recommended that we increase the daily bag limit framework from 5 to 8 for the Central Flyway States of South Dakota, Nebraska, Kansas, and Oklahoma during the Special Early Canada Goose hunting season.
We also agree with the Central Flyway Council's request to increase the Canada goose daily bag limit in South Dakota, Nebraska, Kansas, and Oklahoma. The Special Early Canada Goose hunting season is generally designed to reduce or control overabundant resident Canada geese populations. Increasing the daily bag limit from 5 to 8 may help these States reduce or control existing high populations of resident Canada geese.
The Central and Pacific Flyway Councils recommend using the 2010 Rocky Mountain Population (RMP) sandhill crane harvest allocation of 1,979 birds as proposed in the allocation formula using the 2007–09 3-year running average.
The Pacific Flyway Council recommended initiating a limited hunt for Lower Colorado River Valley Population (LCRVP) of sandhill cranes in Arizona with a goal of a limited harvest of 9 cranes during the 2010–11 hunting season. Arizona will issue permits to hunters and require mandatory check-in of all harvested cranes. The Service previously approved the hunt in 2007.
We also agree with the Councils' recommendations on the RMP sandhill crane harvest allocation of 1,939 birds for the 2010–11 season, as outlined in the RMP sandhill crane management plan's harvest allocation formula. The objective for the RMP sandhill crane is to manage for a stable population index of 17,000–21,000 cranes determined by an average of the three most recent, reliable September (fall pre-migration) surveys. While this year's survey counted 20,321 birds, a decrease from the previous year's count of 21,156 birds, the 3-year average for the RMP sandhill crane fall index is 21,433.
Regarding the proposed limited hunt for LCRVP cranes in the Arizona hunt, in 2007, the Pacific Flyway Council recommended, and we approved, the establishment of a limited hunt for the LCRVP sandhill cranes in Arizona (72 FR 49622, August 28, 2007). However, the population inventory on which the LCRVP hunt plan is based was not completed that year. Thus, the Arizona Game and Fish Department chose to not conduct the hunt in 2007 and sought approval from the Service again in 2008 to begin conducting the hunt. We again approved the limited hunt (73 FR 50678, August 27, 2008). However, due to complications encountered with the proposed onset of this new season falling within ongoing efforts to open new hunting seasons on federal National Wildlife Refuges, the experimental limited hunt season was not opened in 2008. As such, last year the State of Arizona requested that 2009–12 be designated as the new experimental season and designated an area under State control where the experimental hunt will be conducted. Given that the LCRVP survey results indicate an increase from 1,900 birds in 1998 to 2,264 birds in 2009, and that the 3-year average of 2,847 LCRVP cranes is above the population objective of 2,500, we continue to support the establishment of the 3-year experimental framework for this hunt, conditional on successful monitoring being conducted as called for in the Flyway hunt plan for this population. Our final environmental assessment (FEA) on this new hunt can be obtained by writing Robert Trost, Pacific Flyway Representative, U.S. Fish and Wildlife Service, Division of Migratory Bird management, 911 NE 11th Avenue, Portland, OR 97232–4181, or it may be viewed at
The Central Flyway Council recommended that the interim harvest strategy outlined in the Draft American Woodcock Harvest Strategy be implemented for a period of 5 years (2011–15).
The working group's draft interim harvest strategy provides a transparent framework for making regulatory decisions for woodcock season length and bag limit while we work to improve monitoring and assessment protocols for this species. While the strategy's objective is to set woodcock harvest at a level commensurate with population, data limitations preclude accurately assessing harvest potential at this time. Thus, the strategy's thresholds for changing regulations are based on the premise that further population declines would result in decreased harvest, while population increases would allow for additional harvest. The working group recommended that the interim harvest strategy be implemented for the 2011–12 hunting season, that the Service and Flyway Councils evaluate the strategy after 5 years, and that we continue to assess the feasibility of developing a derived harvest strategy.
In the May 13
The Mississippi and Central Flyway Councils recommend the use of the standard (or “moderate”) season package of a 15-bird daily bag limit and a 70-day season for the 2010–11 mourning dove season in the States within the Central Management Unit.
The Pacific Flyway Council recommended use of the “moderate” season framework for States in the Western Management Unit (WMU) population of mourning doves, which represents no change from last year's frameworks.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88–14),” filed with the Environmental Protection Agency on June 9, 1988. We published a notice of availability in the
In a notice published in the September 8, 2005,
Section 7 of the Endangered Species Act, as amended (16 U.S.C. 1531–1543; 87 Stat. 884), provides that, “The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act” (and) shall “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. * * *.” Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks reflect any such modifications. Our biological opinions resulting from this section 7 consultation are public documents available for public inspection at the address indicated under
The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination of regulatory significance 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; and (d) Whether the rule raises novel legal or policy issues.
An economic analysis was prepared for the 2008–09 season. This analysis was based on data from the 2006 National Hunting and Fishing Survey, the most recent year for which data are available (see discussion in
The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on Indian trust resources. However, in the May 13
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Indian Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. That is, if there were a delay in the effective date of these regulations after this final rulemaking, States would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and these frameworks will, therefore, take effect immediately upon publication.
Therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703–711), we prescribe final frameworks setting forth the species to be hunted, the daily bag and possession limits, the shooting hours, the season lengths, the earliest opening and latest closing season dates, and hunting areas, from which State conservation agency officials will select hunting season dates and other options. Upon receipt of season selections from these officials, we will publish a final rulemaking amending 50 CFR part 20 to reflect seasons, limits, and shooting hours for the conterminous United States for the 2010–11 season.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2010–11 hunting season are authorized under 16 U.S.C. 703–712 and 16 U.S.C. 742a–j.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department of the Interior approved the following frameworks, which prescribe season lengths, bag limits, shooting hours, and outside dates within which States may select hunting seasons for certain migratory game birds between September 1, 2010, and March 10, 2011.
Dates: All outside dates noted below are inclusive.
Shooting and Hawking (taking by falconry) Hours: Unless otherwise specified, from one-half hour before sunrise to sunset daily.
Possession Limits: Unless otherwise specified, possession limits are twice the daily bag limit.
Atlantic Flyway—includes Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and West Virginia.
Mississippi Flyway—includes Alabama, Arkansas, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Ohio, Tennessee, and Wisconsin.
Central Flyway—includes Colorado (east of the Continental Divide), Kansas, Montana (Counties of Blaine, Carbon, Fergus, Judith Basin, Stillwater, Sweetgrass, Wheatland, and all counties east thereof), Nebraska, New Mexico (east of the Continental Divide except the Jicarilla Apache Indian Reservation), North Dakota, Oklahoma, South Dakota, Texas, and Wyoming (east of the Continental Divide).
Pacific Flyway—includes Alaska, Arizona, California, Idaho, Nevada, Oregon, Utah, Washington, and those portions of Colorado, Montana, New Mexico, and Wyoming not included in the Central Flyway.
Eastern Management Unit—All States east of the Mississippi River, and Louisiana.
Central Management Unit—Arkansas, Colorado, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming.
Western Management Unit—Arizona, California, Idaho, Nevada, Oregon, Utah, and Washington.
Eastern Management Region—Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and West Virginia.
Central Management Region—Alabama, Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin.
Other geographic descriptions are contained in a later portion of this document.
In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia, where Sunday hunting is
Outside Dates: Between September 1 and September 30, an open season on all species of teal may be selected by the following States in areas delineated by State regulations:
Hunting Seasons and Daily Bag Limits: Not to exceed 16 consecutive hunting days in the Atlantic, Mississippi, and Central Flyways. The daily bag limit is 4 teal.
Shooting Hours:
Florida, Kentucky and Tennessee: In lieu of a special September teal season, a 5-consecutive-day season may be selected in September. The daily bag limit may not exceed 4 teal and wood ducks in the aggregate, of which no more than 2 may be wood ducks.
Iowa: Iowa may hold up to 5 days of its regular duck hunting season in September. All ducks that are legal during the regular duck season may be taken during the September segment of the season. The September season segment may commence no earlier than the Saturday nearest September 20 (September 18). The daily bag and possession limits will be the same as those in effect last year but are subject to change during the late-season regulations process. The remainder of the regular duck season may not begin before October 10.
Outside Dates: States may select 2 consecutive days (hunting days in Atlantic Flyway States with compensatory days) per duck-hunting zone, designated as “Youth Waterfowl Hunting Days,” in addition to their regular duck seasons. The days must be held outside any regular duck season on a weekend, holidays, or other non-school days when youth hunters would have the maximum opportunity to participate. The days may be held up to 14 days before or after any regular duck-season frameworks or within any split of a regular duck season, or within any other open season on migratory birds.
Daily Bag Limits: The daily bag limits may include ducks, geese, mergansers, coots, moorhens, and gallinules and would be the same as those allowed in the regular season. Flyway species and area restrictions would remain in effect.
Shooting Hours: One-half hour before sunrise to sunset.
Participation Restrictions: Youth hunters must be 15 years of age or younger. In addition, an adult at least 18 years of age must accompany the youth hunter into the field. This adult may not duck hunt but may participate in other seasons that are open on the special youth day.
Outside Dates: Between September 15 and January 31.
Hunting Seasons and Daily Bag Limits: Not to exceed 107 days, with a daily bag limit of 7, singly or in the aggregate, of the listed sea-duck species, of which no more than 4 may be scoters.
Daily Bag Limits During the Regular Duck Season: Within the special sea duck areas, during the regular duck season in the Atlantic Flyway, States may choose to allow the above sea duck limits in addition to the limits applying to other ducks during the regular duck season. In all other areas, sea ducks may be taken only during the regular open season for ducks and are part of the regular duck season daily bag (not to exceed 4 scoters) and possession limits.
Areas: In all coastal waters and all waters of rivers and streams seaward from the first upstream bridge in Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, and New York; in any waters of the Atlantic Ocean and in any tidal waters of any bay which are separated by at least 1 mile of open water from any shore, island, and emergent vegetation in New Jersey, South Carolina, and Georgia; and in any waters of the Atlantic Ocean and in any tidal waters of any bay which are separated by at least 800 yards of open water from any shore, island, and emergent vegetation in Delaware, Maryland, North Carolina, and Virginia; and provided that any such areas have been described, delineated, and designated as special sea-duck hunting areas under the hunting regulations adopted by the respective States.
Canada goose seasons of up to 15 days during September 1–15 may be selected for the Eastern Unit of Maryland and Delaware. Seasons not to exceed 30 days during September 1–30 may be selected for Connecticut, Florida, Georgia, New Jersey, New York (Long Island Zone only), North Carolina, Rhode Island, and South Carolina. Seasons may not exceed 25 days during September 1–25 in the remainder of the Flyway. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
Daily Bag Limits: Not to exceed 15 Canada geese.
Canada goose seasons of up to 10 days during September 16–25 may be selected in Delaware. The daily bag limit may not exceed 15 Canada geese. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
Shooting Hours: One-half hour before sunrise to sunset, except that during any general season, shooting hours may extend to one-half hour after sunset if all other waterfowl seasons are closed in the specific applicable area.
Canada goose seasons of up to 15 days during September 1–15 may be selected, except in the Upper Peninsula in Michigan, where the season may not extend beyond September 10, and in Minnesota, where a season of up to 22 days during September 1–22 may be selected. The daily bag limit may not exceed 5 Canada geese. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
A Canada goose season of up to 10 consecutive days during September 1–10 may be selected by Michigan for Huron, Saginaw, and Tuscola Counties, except that the Shiawassee National Wildlife Refuge, Shiawassee River State Game Area Refuge, and the Fish Point Wildlife Area Refuge will remain closed. The daily bag limit may not exceed 5 Canada geese.
Shooting Hours: One-half hour before sunrise to sunset, except that during September 1–15 shooting hours may extend to one-half hour after sunset if
In Kansas, Nebraska, Oklahoma, South Dakota, and Texas, Canada goose seasons of up to 30 days during September 1–30 may be selected. In Colorado, New Mexico, North Dakota, Montana, and Wyoming, Canada goose seasons of up to 15 days during September 1–15 may be selected. The daily bag limit may not exceed 5 Canada geese, except in Kansas, Nebraska, Oklahoma, and South Dakota, where the bag limit may not exceed 8 Canada geese. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
Shooting Hours: One-half hour before sunrise to sunset, except that during September 1–15 shooting hours may extend to one-half hour after sunset if all other waterfowl seasons are closed in the specific applicable area.
California may select a 9-day season in Humboldt County during the period September 1–15. The daily bag limit is 2.
Colorado may select a 9-day season during the period of September 1–15. The daily bag limit is 3.
Oregon may select a special Canada goose season of up to 15 days during the period September 1–15. In addition, in the NW Goose Management Zone in Oregon, a 15-day season may be selected during the period September 1–20. Daily bag limits may not exceed 5 Canada geese.
Idaho may select a 7-day season during the period September 1–15. The daily bag limit is 2, and the possession limit is 4.
Washington may select a special Canada goose season of up to 15 days during the period September 1–15. Daily bag limits may not exceed 5 Canada geese.
Wyoming may select an 8-day season on Canada geese during the period September 1–15. This season is subject to the following conditions:
A. Where applicable, the season must be concurrent with the September portion of the sandhill crane season.
B. A daily bag limit of 2, with season and possession limits of 4, will apply to the special season.
Areas open to hunting of Canada geese in each State must be described, delineated, and designated as such in each State's hunting regulations.
Regular goose seasons may open as early as September 16 in Wisconsin and Michigan. Season lengths, bag and possession limits, and other provisions will be established during the late-season regulations process.
Outside Dates: Between September 1 and February 28.
Hunting Seasons: A season not to exceed 37 consecutive days may be selected in the designated portion of northwestern Minnesota (Northwest Goose Zone).
Daily Bag Limit: 2 sandhill cranes.
Permits: Each person participating in the regular sandhill crane season must have a valid Federal or State sandhill crane hunting permit.
Outside Dates: Between September 1 and February 28.
Hunting Seasons: Seasons not to exceed 37 consecutive days may be selected in designated portions of North Dakota (Area 2) and Texas (Area 2). Seasons not to exceed 58 consecutive days may be selected in designated portions of the following States: Colorado, Kansas, Montana, North Dakota, South Dakota, and Wyoming. Seasons not to exceed 93 consecutive days may be selected in designated portions of the following States: New Mexico, Oklahoma, and Texas.
Daily Bag Limits: 3 sandhill cranes, except 2 sandhill cranes in designated portions of North Dakota (Area 2) and Texas (Area 2).
Permits: Each person participating in the regular sandhill crane season must have a valid Federal or State sandhill crane hunting permit.
Arizona, Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming may select seasons for hunting sandhill cranes within the range of the Rocky Mountain Population (RMP) subject to the following conditions:
Outside Dates: Between September 1 and January 31.
Hunting Seasons: The season in any State or zone may not exceed 30 days.
Bag limits: Not to exceed 3 daily and 9 per season.
Permits: Participants must have a valid permit, issued by the appropriate State, in their possession while hunting.
Other provisions: Numbers of permits, open areas, season dates, protection plans for other species, and other provisions of seasons must be consistent with the management plan and approved by the Central and Pacific Flyway Councils, with the following exceptions:
A. In Utah, 100 percent of the harvest will be assigned to the RMP quota;
B. In Arizona, monitoring the racial composition of the harvest must be conducted at 3-year intervals;
C. In Idaho, 100 percent of the harvest will be assigned to the RMP quota; and
D. In New Mexico, the season in the Estancia Valley is experimental, with a requirement to monitor the level and racial composition of the harvest; greater sandhill cranes in the harvest will be assigned to the RMP quota.
Arizona may select a season for hunting sandhill cranes within the range of the Lower Colorado River Population (LCR) of sandhill cranes, subject to the following conditions:
Outside Dates: Between December 1 and January 31.
Hunting Seasons: The season may not exceed 3 days.
Bag limits: Not to exceed 1 per season.
Permits: Participants must have a valid permit, issued by the appropriate State, in their possession while hunting.
Other provisions: The season is experimental. Numbers of permits, open areas, season dates, protection plans for other species, and other provisions of seasons must be consistent with the management plan and approved by the Pacific Flyway Council.
Outside Dates: Between September 1 and the last Sunday in January (January 30) in the Atlantic, Mississippi, and Central Flyways. States in the Pacific Flyway have been allowed to select their hunting seasons between the outside dates for the season on ducks; therefore, they are late-season frameworks, and no frameworks are provided in this document.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 70 days in the Atlantic, Mississippi, and Central Flyways. Seasons may be split into 2 segments. The daily bag limit is 15 common moorhens and purple gallinules, singly or in the aggregate of the two species.
Zoning: Seasons may be selected by zones established for duck hunting.
Outside Dates: States included herein may select seasons between September 1 and the last Sunday in January (January 30) on clapper, king, sora, and Virginia rails.
Hunting Seasons: Seasons may not exceed 70 days, and may be split into 2 segments.
Clapper and King Rails—In Rhode Island, Connecticut, New Jersey, Delaware, and Maryland, 10, singly or in the aggregate of the 2 species. In Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina, and Virginia, 15, singly or in the aggregate of the two species.
Sora and Virginia Rails—In the Atlantic, Mississippi, and Central Flyways and the Pacific-Flyway portions of Colorado, Montana, New Mexico, and Wyoming, 25 daily and 25 in possession, singly or in the aggregate of the two species. The season is closed in the remainder of the Pacific Flyway.
Outside Dates: Between September 1 and February 28, except in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, and Virginia, where the season must end no later than January 31.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 107 days and may be split into two segments. The daily bag limit is 8 snipe.
Zoning: Seasons may be selected by zones established for duck hunting.
Outside Dates: States in the Eastern Management Region may select hunting seasons between October 1 and January 31. States in the Central Management Region may select hunting seasons between the Saturday nearest September 22 (September 25) and January 31.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 30 days in the Eastern Region and 45 days in the Central Region. The daily bag limit is 3. Seasons may be split into two segments.
Zoning: New Jersey may select seasons in each of two zones. The season in each zone may not exceed 24 days.
Outside Dates: Between September 15 and January 1.
Hunting Seasons and Daily Bag Limits: Not more than 9 consecutive days, with a daily bag limit of 2 band-tailed pigeons.
Zoning: California may select hunting seasons not to exceed 9 consecutive days in each of two zones. The season in the North Zone must close by October 3.
Outside Dates: Between September 1 and November 30.
Hunting Seasons and Daily Bag Limits: Not more than 30 consecutive days, with a daily bag limit of 5 band-tailed pigeons.
Zoning: New Mexico may select hunting seasons not to exceed 20 consecutive days in each of two zones. The season in the South Zone may not open until October 1.
Outside Dates: Between September 1 and January 15, except as otherwise provided, States may select hunting seasons and daily bag limits as follows:
Hunting Seasons and Daily Bag Limits: Not more than 70 days, with a daily bag limit of 15 mourning and white-winged doves in the aggregate.
Zoning and Split Seasons: States may select hunting seasons in each of two zones. The season within each zone may be split into not more than three periods. Regulations for bag and possession limits, season length, and shooting hours must be uniform within specific hunting zones.
Hunting Seasons and Daily Bag Limits: Not more than 70 days, with a daily bag limit of 15 mourning and white-winged doves in the aggregate.
States may select hunting seasons in each of two zones. The season within each zone may be split into not more than three periods.
Texas may select hunting seasons for each of three zones subject to the following conditions:
A. The hunting season may be split into not more than two periods, except in that portion of Texas in which the special white-winged dove season is allowed, where a limited mourning dove season may be held concurrently with that special season (see white-winged dove frameworks).
B. A season may be selected for the North and Central Zones between September 1 and January 25; and for the South Zone between the Friday nearest September 20 (September 17), but not earlier than September 17, and January 25.
C. Daily bag limits are aggregate bag limits with mourning, white-winged, and white-tipped doves (see white-winged dove frameworks for specific daily bag limit restrictions).
D. Except as noted above, regulations for bag and possession limits, season length, and shooting hours must be uniform within each hunting zone.
Idaho, Oregon, and Washington—Not more than 30 consecutive days, with a daily bag limit of 10 mourning doves.
Utah—Not more than 30 consecutive days, with a daily bag limit that may not exceed 10 mourning doves and white-winged doves in the aggregate.
Nevada—Not more than 30 consecutive days, with a daily bag limit of 10 mourning doves, except in Clark and Nye Counties, where the daily bag limit may not exceed 10 mourning and white-winged doves in the aggregate.
Arizona and California—Not more than 60 days, which may be split between two periods, September 1–15 and November 1–January 15. In Arizona, during the first segment of the season, the daily bag limit is 10 mourning and white-winged doves in the aggregate, of which no more than 6 may be white-winged doves. During the remainder of the season, the daily bag limit is 10 mourning doves. In California, the daily bag limit is 10 mourning doves, except in Imperial, Riverside, and San Bernardino Counties, where the daily bag limit may not exceed 10 mourning and white-winged doves in the aggregate.
Except as shown below, seasons must be concurrent with mourning dove seasons.
Eastern Management Unit: The daily bag limit may not exceed 15 mourning and white-winged doves in the aggregate.
In Texas, the daily bag limit may not exceed 15 mourning, white-winged, and white-tipped doves in the aggregate, of which no more than 2 may be white-tipped doves. In addition, Texas also may select a hunting season of not more than 4 days for the special white-winged dove area of the South Zone between September 1 and September 19. The daily bag limit may not exceed 15 white-winged, mourning, and white-tipped doves in the aggregate, of which no more than 4 may be mourning doves and 2 may be white-tipped doves.
In the remainder of the Central Management Unit, the daily bag limit may not exceed 15 mourning and white-winged doves in the aggregate.
Arizona may select a hunting season of not more than 30 consecutive days,
In Utah, the Nevada Counties of Clark and Nye, and in the California Counties of Imperial, Riverside, and San Bernardino, the daily bag limit may not exceed 10 mourning and white-winged doves in the aggregate.
In the remainder of the Western Management Unit, the season is closed.
Outside Dates: Between September 1 and January 26.
Hunting Seasons: Alaska may select 107 consecutive days for waterfowl, sandhill cranes, and common snipe in each of 5 zones. The season may be split without penalty in the Kodiak Zone. The seasons in each zone must be concurrent.
Closures: The hunting season is closed on emperor geese, spectacled eiders, and Steller's eiders.
Ducks—Except as noted, a basic daily bag limit of 7 and a possession limit of 21 ducks. Daily bag and possession limits in the North Zone are 10 and 30, and in the Gulf Coast Zone, they are 8 and 24. The basic limits may include no more than 1 canvasback daily and 3 in possession and may not include sea ducks.
In addition to the basic duck limits, Alaska may select sea duck limits of 10 daily, 20 in possession, singly or in the aggregate, including no more than 6 each of either harlequin or long-tailed ducks. Sea ducks include scoters, common and king eiders, harlequin ducks, long-tailed ducks, and common and red-breasted mergansers.
Light Geese—A basic daily bag limit of 4 and a possession limit of 8.
Dark Geese—A basic daily bag limit of 4 and a possession limit of 8.
Dark-goose seasons are subject to the following exceptions:
A. In Units 5 and 6, the taking of Canada geese is permitted from September 28 through December 16.
B. On Middleton Island in Unit 6, a special, permit-only Canada goose season may be offered. A mandatory goose identification class is required. Hunters must check in and check out. The bag limit is 1 daily and 1 in possession. The season will close if incidental harvest includes 5 dusky Canada geese. A dusky Canada goose is any dark-breasted Canada goose (Munsell 10 YR color value five or less) with a bill length between 40 and 50 millimeters.
C. In Units 6–B, 6–C and on Hinchinbrook and Hawkins Islands in Unit 6–D, a special, permit-only Canada goose season may be offered. Hunters must have all harvested geese checked and classified to subspecies. The daily bag limit is 4 daily and 8 in possession. The Canada goose season will close in all of the permit areas if the total dusky goose (as defined above) harvest reaches 40.
D. In Units 9, 10, 17, and 18, dark goose limits are 6 per day, 12 in possession; however, no more than 2 may be Canada geese in Units 9(E) and 18; and no more than 4 may be Canada geese in Units 9(A–C), 10 (Unimak Island portion), and 17.
Brant—A daily bag limit of 2 and a possession limit of 4.
Common snipe—A daily bag limit of 8.
Sandhill cranes—Bag and possession limits of 2 and 4, respectively, in the Southeast, Gulf Coast, Kodiak, and Aleutian Zones, and Unit 17 in the Northern Zone. In the remainder of the Northern Zone (outside Unit 17), bag and possession limits of 3 and 6, respectively.
Tundra Swans—Open seasons for tundra swans may be selected subject to the following conditions:
A. All seasons are by registration permit only.
B. All season framework dates are September 1–October 31.
C. In Game Management Unit (GMU) 17, no more than 200 permits may be issued during this operational season. No more than 3 tundra swans may be authorized per permit, with no more than 1 permit issued per hunter per season.
D. In Game Management Unit (GMU) 18, no more than 500 permits may be issued during the operational season. Up to 3 tundra swans may be authorized per permit. No more than 1 permit may be issued per hunter per season.
E. In GMU 22, no more than 300 permits may be issued during the operational season. Each permittee may be authorized to take up to 3 tundra swans per permit. No more than 1 permit may be issued per hunter per season.
F. In GMU 23, no more than 300 permits may be issued during the operational season. No more than 3 tundra swans may be authorized per permit, with no more than 1 permit issued per hunter per season.
Outside Dates: Between October 1 and January 31.
Hunting Seasons: Not more than 65 days (75 under the alternative) for mourning doves.
Bag Limits: Not to exceed 15 (12 under the alternative) mourning doves.
Mourning doves may be taken in Hawaii in accordance with shooting hours and other regulations set by the State of Hawaii, and subject to the applicable provisions of 50 CFR part 20.
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days.
Daily Bag and Possession Limits: Not to exceed 20 Zenaida, mourning, and white-winged doves in the aggregate, of which not more than 10 may be Zenaida doves and 3 may be mourning doves. Not to exceed 5 scaly-naped pigeons.
Closed Seasons: The season is closed on the white-crowned pigeon and the plain pigeon, which are protected by the Commonwealth of Puerto Rico.
Closed Areas: There is no open season on doves or pigeons in the following areas: Municipality of Culebra, Desecheo Island, Mona Island, El Verde Closure Area, and Cidra Municipality and adjacent areas.
Outside Dates: Between October 1 and January 31.
Hunting Seasons: Not more than 55 days may be selected for hunting ducks, common moorhens, and common snipe. The season may be split into two segments.
Ducks—Not to exceed 6.
Common moorhens—Not to exceed 6.
Common snipe—Not to exceed 8.
Closed Seasons: The season is closed on the ruddy duck, white-cheeked pintail, West Indian whistling duck, fulvous whistling duck, and masked duck, which are protected by the Commonwealth of Puerto Rico. The season also is closed on the purple gallinule, American coot, and Caribbean coot.
Closed Areas: There is no open season on ducks, common moorhens, and common snipe in the Municipality of Culebra and on Desecheo Island.
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days for Zenaida doves.
Daily Bag and Possession Limits: Not to exceed 10 Zenaida doves.
Closed Seasons: No open season is prescribed for ground or quail doves or pigeons.
Closed Areas: There is no open season for migratory game birds on Ruth Cay (just south of St. Croix).
Local Names for Certain Birds: Zenaida dove, also known as mountain dove; bridled quail-dove, also known as Barbary dove or partridge; Common ground-dove, also known as stone dove, tobacco dove, rola, or tortolita; scaly-naped pigeon, also known as red-necked or scaled pigeon.
Outside Dates: Between December 1 and January 31.
Hunting Seasons: Not more than 55 consecutive days.
Daily Bag Limits: Not to exceed 6.
Closed Seasons: The season is closed on the ruddy duck, white-cheeked pintail, West Indian whistling duck, fulvous whistling duck, and masked duck.
Falconry is a permitted means of taking migratory game birds in any State meeting Federal falconry standards in 50 CFR 21.29. These States may select an extended season for taking migratory game birds in accordance with the following:
Extended Seasons: For all hunting methods combined, the combined length of the extended season, regular season, and any special or experimental seasons must not exceed 107 days for any species or group of species in a geographical area. Each extended season may be divided into a maximum of 3 segments.
Framework Dates: Seasons must fall between September 1 and March 10.
Daily Bag and Possession Limits: Falconry daily bag and possession limits for all permitted migratory game birds must not exceed 3 and 6 birds, respectively, singly or in the aggregate, during extended falconry seasons, any special or experimental seasons, and regular hunting seasons in all States, including those that do not select an extended falconry season.
Regular Seasons: General hunting regulations, including seasons and hunting hours, apply to falconry in each State listed in 50 CFR 21.29. Regular-season bag and possession limits do not apply to falconry. The falconry bag limit is not in addition to gun limits.
South Zone—Baldwin, Barbour, Coffee, Covington, Dale, Escambia, Geneva, Henry, Houston, and Mobile Counties.
North Zone—Remainder of the State.
White-winged Dove Open Areas—Imperial, Riverside, and San Bernardino Counties.
Northwest Zone—The Counties of Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Liberty, Okaloosa, Santa Rosa, Walton, Washington, Leon (except that portion north of U.S. 27 and east of State Road 155), Jefferson (south of U.S. 27, west of State Road 59 and north of U.S. 98), and Wakulla (except that portion south of U.S. 98 and east of the St. Marks River).
South Zone—Remainder of State.
North Zone—That portion of the State north of a line extending east from the Texas border along State Highway 12 to U.S. Highway 190, east along U.S. 190 to Interstate Highway 12, east along Interstate 12 to Interstate Highway 10, then east along Interstate Highway 10 to the Mississippi border.
South Zone—The remainder of the State.
North Zone—That portion of the State north and west of a line extending west from the Alabama State line along U.S. Highway 84 to its junction with State Highway 35, then south along State Highway 35 to the Louisiana State line.
South Zone—The remainder of Mississippi.
White-winged Dove Open Areas—Clark and Nye Counties.
North Zone—That portion of the State north of a line extending east from the Texas border along U.S. Highway 62 to Interstate 44, east along Oklahoma State Highway 7 to U.S. Highway 81, then south along U.S. Highway 81 to the Texas border at the Red River.
Southwest Zone—The remainder of Oklahoma.
North Zone—That portion of the State north of a line beginning at the International Bridge south of Fort Hancock; north along FM 1088 to TX 20; west along TX 20 to TX 148; north along TX 148 to I–10 at Fort Hancock; east along I–10 to I–20; northeast along I–20 to I–30 at Fort Worth; northeast along I–30 to the Texas–Arkansas State line.
South Zone—That portion of the State south and west of a line beginning at the International Bridge south of Del Rio, proceeding east on U.S. 90 to State Loop 1604 west of San Antonio; then south, east, and north along Loop 1604 to Interstate Highway 10 east of San Antonio; then east on I–10 to Orange, Texas.
Special White-winged Dove Area in the South Zone—That portion of the State south and west of a line beginning at the International Bridge south of Del Rio, proceeding east on U.S. 90 to State Loop 1604 west of San Antonio, southeast on State Loop 1604 to Interstate Highway 35, southwest on Interstate Highway 35 to TX 44; east along TX 44 to TX 16 at Freer; south along TX 16 to FM 649 in Randado; south on FM 649 to FM 2686; east on FM 2686 to FM 1017; southeast on FM 1017 to TX 186 at Linn; east along TX 186 to the Mansfield Channel at Port Mansfield; east along the Mansfield Channel to the Gulf of Mexico.
Area with additional restrictions—Cameron, Hidalgo, Starr, and Willacy Counties.
Central Zone—That portion of the State lying between the North and South Zones.
North Zone—Alpine, Butte, Del Norte, Glenn, Humboldt, Lassen, Mendocino, Modoc, Plumas, Shasta, Sierra, Siskiyou, Tehama, and Trinity Counties.
South Zone—The remainder of the State.
North Zone—North of a line following U.S. 60 from the Arizona State line east to I–25 at Socorro and then south along I–25 from Socorro to the Texas State line.
South Zone—The remainder of the State.
Western Washington—The State of Washington excluding those portions lying east of the Pacific Crest Trail and east of the Big White Salmon River in Klickitat County.
North Zone—That portion of the State north of NJ 70.
South Zone—The remainder of the State.
North Zone—That portion of the State north of I–95.
South Zone—The remainder of the State.
Eastern Unit—Calvert, Caroline, Cecil, Dorchester, Harford, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester Counties; and that part of Anne Arundel County east of Interstate 895, Interstate 97 and Route 3; that part of Prince George's County east of Route 3 and Route 301; and that part of Charles County east of Route 301 to the Virginia State line.
Western Unit—Allegany, Baltimore, Carroll, Frederick, Garrett, Howard, Montgomery, and Washington Counties and that part of Anne Arundel County west of Interstate 895, Interstate 97 and Route 3; that part of Prince George's County west of Route 3 and Route 301; and that part of Charles County west of Route 301 to the Virginia State line.
Western Zone—That portion of the State west of a line extending south from the Vermont border on I–91 to MA 9, west on MA 9 to MA 10, south on MA 10 to U.S. 202, south on U.S. 202 to the Connecticut border.
Central Zone—That portion of the State east of the Berkshire Zone and west of a line extending south from the New Hampshire border on I–95 to U.S. 1, south on U.S. 1 to I–93, south on I–93 to MA 3, south on MA 3 to U.S. 6, west on U.S. 6 to MA 28, west on MA 28 to I–195, west to the Rhode Island border; except the waters, and the lands 150 yards inland from the high-water mark, of the Assonet River upstream to the MA 24 bridge, and the Taunton River upstream to the Center St.–Elm St. bridge will be in the Coastal Zone.
Coastal Zone—That portion of Massachusetts east and south of the Central Zone.
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area east and north of a line extending along NY 9B from the Canadian border to U.S. 9, south along U.S. 9 to NY 22 south of Keesville; south along NY 22 to the west shore of South Bay, along and around the shoreline of South Bay to NY 22 on the east shore of South Bay; southeast along NY 22 to U.S. 4, northeast along U.S. 4 to the Vermont border.
Eastern Long Island Goose Area (NAP High Harvest Area)—That area of Suffolk County lying east of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of Roanoke Avenue in the Town of Riverhead; then south on Roanoke Avenue (which becomes County Route 73) to State Route 25; then west on Route 25 to Peconic Avenue; then south on Peconic Avenue to County Route (CR) 104 (Riverleigh Avenue); then south on CR 104 to CR 31 (Old Riverhead Road); then south on CR 31 to Oak Street; then south on Oak Street to Potunk Lane; then west on Stevens Lane; then south on Jessup Avenue (in Westhampton Beach) to Dune Road (CR 89); then due south to international waters.
Western Long Island Goose Area (RP Area)—That area of Westchester County and its tidal waters southeast of Interstate Route 95 and that area of Nassau and Suffolk Counties lying west of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of the Sunken Meadow State Parkway; then south on the Sunken Meadow Parkway to the Sagtikos State Parkway; then south on the Sagtikos Parkway to the Robert Moses State Parkway; then south on the Robert Moses Parkway to its southernmost end; then due south to international waters.
Central Long Island Goose Area (NAP Low Harvest Area)—That area of Suffolk County lying between the Western and Eastern Long Island Goose Areas, as defined above.
Western Zone—That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, and south along I–81 to the Pennsylvania border.
Northeastern Zone—That area north of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, south along I–81 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to I–87, north along I–87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive of the Lake Champlain Zone.
Southeastern Zone—The remaining portion of New York.
Northeast Hunt Unit—Camden, Chowan, Currituck, Dare, Hyde, Pasquotank, Perquimans, Tyrrell, and Washington Counties; that portion of Bertie County north and east of a line formed by NC 45 at the Washington County line to US 17 in Midway, US 17 in Midway to US 13 in Windsor to the Hertford County line; and that portion of Northampton County that is north of US 158 and east of NC 35.
Southern James Bay Population (SJBP) Zone—The area north of I–80 and west of I–79, including in the city of Erie west of Bay Front Parkway to and including the Lake Erie Duck Zone (Lake Erie, Presque Isle, and the area within 150 yards of the Lake Erie Shoreline).
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area north and west of the line extending from the New York border along U.S. 4 to VT 22A at Fair Haven; VT 22A to U.S. 7 at Vergennes; U.S. 7 to the Canadian border.
Interior Zone—That portion of Vermont west of the Lake Champlain Zone and eastward of a line extending from the Massachusetts border at Interstate 91; north along Interstate 91 to US 2; east along US 2 to VT 102; north along VT 102 to VT 253; north along VT 253 to the Canadian border.
Connecticut River Zone—The remaining portion of Vermont east of the Interior Zone.
Early Canada Goose Area—Baxter, Benton, Boone, Carroll, Clark, Conway, Crawford, Faulkner, Franklin, Garland, Hempstead, Hot Springs, Howard, Johnson, Lafayette, Little River, Logan, Madison, Marion, Miller, Montgomery, Newton, Perry, Pike, Polk, Pope, Pulaski, Saline, Searcy, Sebastian, Sevier, Scott, Van Buren, Washington, and Yell Counties.
Northeast Canada Goose Zone—Cook, Du Page, Grundy, Kane, Kankakee, Kendall, Lake, McHenry, and Will Counties.
North Zone—That portion of the State outside the Northeast Canada Goose Zone and north of a line extending west from the Indiana border along Peotone–Beecher Road to Illinois Route 50, south along Illinois Route 50 to Wilmington–Peotone Road, west along Wilmington–Peotone Road to Illinois Route 53, north along Illinois Route 53 to New River Road, northwest along New River Road to Interstate Highway 55, south along I–55 to Pine Bluff–Lorenzo Road, west along Pine Bluff–Lorenzo Road to Illinois Route 47, north along Illinois Route 47 to I–80, west along I–80 to I–
Central Zone—That portion of the State outside the Northeast Canada Goose Zone and south of the North Zone to a line extending west from the Indiana border along Interstate Highway 70 to Illinois Route 4, south along Illinois Route 4 to Illinois Route 161, west along Illinois Route 161 to Illinois Route 158, south and west along Illinois Route 158 to Illinois Route 159, south along Illinois Route 159 to Illinois Route 156, west along Illinois Route 156 to A Road, north and west on A Road to Levee Road, north on Levee Road to the south shore of New Fountain Creek, west along the south shore of New Fountain Creek to the Mississippi River, and due west across the Mississippi River to the Missouri border.
South Zone—The remainder of Illinois.
North Zone—That portion of the State north of U.S. Highway 20.
South Zone—The remainder of Iowa.
Cedar Rapids/Iowa City Goose Zone—Includes portions of Linn and Johnson Counties bounded as follows: Beginning at the intersection of the west border of Linn County and Linn County Road E2W; then south and east along County Road E2W to Highway 920; then north along Highway 920 to County Road E16; then east along County Road E16 to County Road W58; then south along County Road W58 to County Road E34; then east along County Road E34 to Highway 13; then south along Highway 13 to Highway 30; then east along Highway 30 to Highway 1; then south along Highway 1 to Morse Road in Johnson County; then east along Morse Road to Wapsi Avenue; then south along Wapsi Avenue to Lower West Branch Road; then west along Lower West Branch Road to Taft Avenue; then south along Taft Avenue to County Road F62; then west along County Road F62 to Kansas Avenue; then north along Kansas Avenue to Black Diamond Road; then west on Black Diamond Road to Jasper Avenue; then north along Jasper Avenue to Rohert Road; then west along Rohert Road to Ivy Avenue; then north along Ivy Avenue to 340th Street; then west along 340th Street to Half Moon Avenue; then north along Half Moon Avenue to Highway 6; then west along Highway 6 to Echo Avenue; then north along Echo Avenue to 250th Street; then east on 250th Street to Green Castle Avenue; then north along Green Castle Avenue to County Road F12; then west along County Road F12 to County Road W30; then north along County Road W30 to Highway 151; then north along the Linn–Benton County line to the point of beginning.
Des Moines Goose Zone—Includes those portions of Polk, Warren, Madison and Dallas Counties bounded as follows: Beginning at the intersection of Northwest 158th Avenue and County Road R38 in Polk County; then south along R38 to Northwest 142nd Avenue; then east along Northwest 142nd Avenue to Northeast 126th Avenue; then east along Northeast 126th Avenue to Northeast 46th Street; then south along Northeast 46th Street to Highway 931; then east along Highway 931 to Northeast 80th Street; then south along Northeast 80th Street to Southeast 6th Avenue; then west along Southeast 6th Avenue to Highway 65; then south and west along Highway 65 to Highway 69 in Warren County; then south along Highway 69 to County Road G24; then west along County Road G24 to Highway 28; then southwest along Highway 28 to 43rd Avenue; then north along 43rd Avenue to Ford Street; then west along Ford Street to Filmore Street; then west along Filmore Street to 10th Avenue; then south along 10th Avenue to 155th Street in Madison County; then west along 155th Street to Cumming Road; then north along Cumming Road to Badger Creek Avenue; then north along Badger Creek Avenue to County Road F90 in Dallas County; then east along County Road F90 to County Road R22; then north along County Road R22 to Highway 44; then east along Highway 44 to County Road R30; then north along County Road R30 to County Road F31; then east along County Road F31 to Highway 17; then north along Highway 17 to Highway 415 in Polk County; then east along Highway 415 to Northwest 158th Avenue; then east along Northwest 158th Avenue to the point of beginning.
Cedar Falls/Waterloo Goose Zone—Includes those portions of Black Hawk County bounded as follows: Beginning at the intersection of County Roads C66 and V49 in Black Hawk County, then south along County Road V49 to County Road D38, then west along County Road D38 to State Highway 21, then south along State Highway 21 to County Road D35, then west along County Road D35 to Grundy Road, then north along Grundy Road to County Road D19, then west along County Road D19 to Butler Road, then north along Butler Road to County Road C57, then north and east along County Road C57 to U.S. Highway 63, then south along U.S. Highway 63 to County Road C66, then east along County Road C66 to the point of beginning.
Twin Cities Metropolitan Canada Goose Zone—
A. All of Hennepin and Ramsey Counties.
B. In Anoka County, all of Columbus Township lying south of County State Aid Highway (CSAH) 18, Anoka County; all of the cities of Ramsey, Andover, Anoka, Coon Rapids, Spring Lake Park, Fridley, Hilltop, Columbia Heights, Blaine, Lexington, Circle Pines, Lino Lakes, and Centerville; and all of the city of Ham Lake except that portion lying north of CSAH 18 and east of U.S. Highway 65.
C. That part of Carver County lying north and east of the following described line: Beginning at the northeast corner of San Francisco Township; then west along the north boundary of San Francisco Township to the east boundary of Dahlgren Township; then north along the east boundary of Dahlgren Township to U.S. Highway 212; then west along U.S. Highway 212 to State Trunk Highway (STH) 284; then north on STH 284 to County State Aid Highway (CSAH) 10; then north and west on CSAH 10 to CSAH 30; then north and west on CSAH 30 to STH 25; then east and north on STH 25 to CSAH 10; then north on CSAH 10 to the Carver County line.
D. In Scott County, all of the cities of Shakopee, Savage, Prior Lake, and Jordan, and all of the Townships of Jackson, Louisville, St. Lawrence, Sand Creek, Spring Lake, and Credit River.
E. In Dakota County, all of the cities of Burnsville, Eagan, Mendota Heights, Mendota, Sunfish Lake, Inver Grove Heights, Apple Valley, Lakeville, Rosemount, Farmington, Hastings, Lilydale, West St. Paul, and South St. Paul, and all of the Township of Nininger.
F. That portion of Washington County lying south of the following described line: Beginning at County State Aid Highway (CSAH) 2 on the west boundary of the county; then east on CSAH 2 to U.S. Highway 61; then south on U.S. Highway 61 to State Trunk Highway (STH) 97; then east on STH 97 to the intersection of STH 97 and STH 95; then due east to the east boundary of the State.
Northwest Goose Zone—That portion of the State encompassed by a line extending east from the North Dakota border along U.S. Highway 2 to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along STH 92 to County State Aid Highway (CSAH) 2
Southeast Goose Zone—That part of the State within the following described boundaries: beginning at the intersection of U.S. Highway 52 and the south boundary of the Twin Cities Metro Canada Goose Zone; then along the U.S. Highway 52 to State Trunk Highway (STH) 57; then along STH 57 to the municipal boundary of Kasson; then along the municipal boundary of Kasson County State Aid Highway (CSAH) 13, Dodge County; then along CSAH 13 to STH 30; then along STH 30 to U.S. Highway 63; then along U.S. Highway 63 to the south boundary of the State; then along the south and east boundaries of the State to the south boundary of the Twin Cities Metro Canada Goose Zone; then along said boundary to the point of beginning.
Five Goose Zone—That portion of the State not included in the Twin Cities Metropolitan Canada Goose Zone, the Northwest Goose Zone, or the Southeast Goose Zone.
West Zone—That portion of the State encompassed by a line beginning at the junction of State Trunk Highway (STH) 60 and the Iowa border, then north and east along STH 60 to U.S. Highway 71, north along U.S. 71 to I–94, then north and west along I–94 to the North Dakota border.
Middle Tennessee Zone—Those portions of Houston, Humphreys, Montgomery, Perry, and Wayne Counties east of State Highway 13; and Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles, Hickman, Lawrence, Lewis, Lincoln, Macon, Marshall, Maury, Moore, Robertson, Rutherford, Smith, Sumner, Trousdale, Williamson, and Wilson Counties.
East Tennessee Zone—Anderson, Bledsoe, Bradley, Blount, Campbell, Carter, Claiborne, Clay, Cocke, Cumberland, DeKalb, Fentress, Grainger, Greene, Grundy, Hamblen, Hamilton, Hancock, Hawkins, Jackson, Jefferson, Johnson, Knox, Loudon, Marion, McMinn, Meigs, Monroe, Morgan, Overton, Pickett, Polk, Putnam, Rhea, Roane, Scott, Sequatchie, Sevier, Sullivan, Unicoi, Union, Van Buren, Warren, Washington, and White Counties.
Early-Season Subzone A—That portion of the State encompassed by a line beginning at the intersection of U.S. Highway 141 and the Michigan border near Niagara, then south along U.S. 141 to State Highway 22, west and southwest along State 22 to U.S. 45, south along U.S. 45 to State 22, west and south along State 22 to State 110, south along State 110 to U.S. 10, south along U.S. 10 to State 49, south along State 49 to State 23, west along State 23 to State 73, south along State 73 to State 60, west along State 60 to State 23, south along State 23 to State 11, east along State 11 to State 78, then south along State 78 to the Illinois border.
Early-Season Subzone B—The remainder of the State.
September Canada Goose Unit—That part of Nebraska bounded by a line from the Nebraska–Iowa State line west on U.S. Highway 30 to US Highway 81, then south on US Highway 81 to NE Highway 64, then east on NE Highway 64 to NE Highway 15, then south on NE Highway 15 to NE Highway 41, then east on NE Highway 41 to NE Highway 50, then north on NE Highway 50 to NE Highway 2, then east on NE Highway 2 to the Nebraska–Iowa State line.
Missouri River Canada Goose Zone—The area within and bounded by a line starting where ND Hwy 6 crosses the South Dakota border; then north on ND Hwy 6 to I–94; then west on I–94 to ND Hwy 49; then north on ND Hwy 49 to ND Hwy 200; then north on Mercer County Rd. 21 to the section line between sections 8 and 9 (T146N–R87W); then north on that section line to the southern shoreline to Lake Sakakawea; then east along the southern shoreline (including Mallard Island) of Lake Sakakawea to US Hwy 83; then south on US Hwy 83 to ND Hwy 200; then east on ND Hwy 200 to ND Hwy 41; then south on ND Hwy 41 to US Hwy 83; then south on US Hwy 83 to I–94; then east on I–94 to US Hwy 83; then south on US Hwy 83 to the South Dakota border; then west along the South Dakota border to ND Hwy 6.
Rest of State: Remainder of North Dakota.
Special Early Canada Goose Unit—Entire State of South Dakota
East Zone—Bonneville, Caribou, Fremont, and Teton Counties.
Northwest Zone—Benton, Clackamas, Clatsop, Columbia, Lane, Lincoln, Linn, Marion, Polk, Multnomah, Tillamook, Washington, and Yamhill Counties.
Southwest Zone—Coos, Curry, Douglas, Jackson, Josephine, and Klamath Counties.
East Zone—Baker, Gilliam, Malheur, Morrow, Sherman, Umatilla, Union, and Wasco Counties.
Area 1—Skagit, Island, and Snohomish Counties.
Area 2A (SW Quota Zone)—Clark County, except portions south of the Washougal River; Cowlitz County; and Wahkiakum County.
Area 2B (SW Quota Zone)—Pacific County.
Area 3—All areas west of the Pacific Crest Trail and west of the Big White Salmon River that are not included in Areas 1, 2A, and 2B.
Area 4—Adams, Benton, Chelan, Douglas, Franklin, Grant, Kittitas, Lincoln, Okanogan, Spokane, and Walla Walla Counties.
Area 5—All areas east of the Pacific Crest Trail and east of the Big White Salmon River that are not included in Area 4.
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area east and north of a line extending along NY 9B from the Canadian border to U.S. 9, south along U.S. 9 to NY 22 south of
Long Island Zone—That area consisting of Nassau County, Suffolk County, that area of Westchester County southeast of I–95, and their tidal waters.
Western Zone—That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, and south along I–81 to the Pennsylvania border.
Northeastern Zone—That area north of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, south along I–81 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to I–87, north along I–87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive of the Lake Champlain Zone.
Southeastern Zone—The remaining portion of New York.
Special Teal Season Area—Calvert, Caroline, Cecil, Dorchester, Harford, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester Counties; that part of Anne Arundel County east of Interstate 895, Interstate 97, and Route 3; that part of Prince Georges County east of Route 3 and Route 301; and that part of Charles County east of Route 301 to the Virginia State Line.
North Zone—That portion of the State north of a line extending east from the Illinois border along State Road 18 to U.S. Highway 31, north along U.S. 31 to U.S. 24, east along U.S. 24 to Huntington, then southeast along U.S. 224 to the Ohio border.
Ohio River Zone—That portion of the State south of a line extending east from the Illinois border along Interstate Highway 64 to New Albany, east along State Road 62 to State 56, east along State 56 to Vevay, east and north on State 156 along the Ohio River to North Landing, north along State 56 to U.S. Highway 50, then northeast along U.S. 50 to the Ohio border.
South Zone—That portion of the State between the North and Ohio River Zone boundaries.
North Zone—That portion of the State north of a line extending east from the Nebraska border along State Highway 175 to State Highway 37, southeast along State Highway 37 to State Highway 183, northeast along State Highway 183 to State Highway 141, east along State Highway 141 to U.S. Highway 30, then east along U.S. Highway 30 to the Illinois border.
South Zone—The remainder of Iowa.
Special Teal Season Area—Lake and Chaffee Counties and that portion of the State east of Interstate Highway 25.
High Plains Zone—That portion of the State west of U.S. 283.
Low Plains Early Zone—That area of Kansas east of U.S. 283, and generally west of a line beginning at the Junction of the Nebraska State line and KS 28; south on KS 28 to U.S. 36; east on U.S. 36 to KS 199; south on KS 199 to Republic Co. Road 563; south on Republic Co. Road 563 to KS 148; east on KS 148 to Republic Co. Road 138; south on Republic Co. Road 138 to Cloud Co. Road 765; south on Cloud Co. Road 765 to KS 9; west on KS 9 to U.S. 24; west on U.S. 24 to U.S. 281; north on U.S. 281 to U.S. 36; west on U.S. 36 to U.S. 183; south on U.S. 183 to U.S. 24; west on U.S. 24 to KS 18; southeast on KS 18 to U.S. 183; south on U.S. 183 to KS 4; east on KS 4 to I–135; south on I–135 to KS 61; southwest on KS 61 to KS 96; northwest on KS 96 to U.S. 56; west on U.S. 56 to U.S. 281; south on U.S. 281 to U.S. 54; west on U.S. 54 to U.S. 183; north on U.S. 183 to U.S. 56; and southwest on U.S. 56 to U.S. 283.
Low Plains Late Zone—The remainder of Kansas.
Special Teal Season Area—That portion of the State south of a line beginning at the Wyoming State line; east along U.S. 26 to Nebraska Highway L62A east to U.S. 385; south to U.S. 26; east to NE 92; east along NE 92 to NE 61; south along NE 61 to U.S. 30; east along U.S. 30 to the Iowa border.
North Zone—That portion of the State north of I–40 and U.S. 54.
South Zone—The remainder of New Mexico.
Northeastern Zone—In that portion of California lying east and north of a line beginning at the intersection of Interstate 5 with the California–Oregon line; south along Interstate 5 to its junction with Walters Lane south of the town of Yreka; west along Walters Lane to its junction with Easy Street; south along Easy Street to the junction with Old Highway 99; south along Old Highway 99 to the point of intersection with Interstate 5 north of the town of Weed; south along Interstate 5 to its junction with Highway 89; east and south along Highway 89 to Main Street Greenville; north and east to its junction with North Valley Road; south to its junction of Diamond Mountain Road; north and east to its junction with North Arm Road; south and west to the junction of North Valley Road; south to the junction with Arlington Road (A22); west to the junction of Highway 89; south and west to the junction of Highway 70; east on Highway 70 to Highway 395; south and east on Highway 395 to the point of intersection with the California–Nevada State line; north along the California–Nevada State line to the junction of the California–Nevada–Oregon State lines west along the California–Oregon State line to the point of origin.
Colorado River Zone—Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada border south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino–Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I–10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army–Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe–Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east 7 miles on U.S. 80 to the Andrade–Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone—That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I–15; east on I–15 to CA 127; north on CA 127 to the Nevada border.
Southern San Joaquin Valley Temporary Zone—All of Kings and Tulare Counties and that portion of
Balance-of-the-State Zone—The remainder of California not included in the Northeastern, Southern, and Colorado River Zones, and the Southern San Joaquin Valley Temporary Zone.
Mississippi Valley Population (MVP)–Upper Peninsula Zone—The MVP–Upper Peninsula Zone consists of the entire Upper Peninsula of Michigan.
MVP–Lower Peninsula Zone—The MVP–Lower Peninsula Zone consists of the area within the Lower Peninsula of Michigan that is north and west of the point beginning at the southwest corner of Branch County, north continuing along the western border of Branch and Calhoun Counties to the northwest corner of Calhoun County, then east to the southwest corner of Eaton County, then north to the southern border of Ionia County, then east to the southwest corner of Clinton County, then north along the western border of Clinton County continuing north along the county border of Gratiot and Montcalm Counties to the southern border of Isabella county, then east to the southwest corner of Midland County, then north along the west Midland County border to Highway M–20, then easterly to U.S. Highway 10, then easterly to I–75/U.S. 23, then northerly along I–75/U.S. 23 and easterly on U.S. 23 to the centerline of the Au Gres River, then southerly along the centerline of the Au Gres River to Saginaw Bay, then on a line directly east 10 miles into Saginaw Bay, and from that point on a line directly northeast to the Canadian border.
SJBP Zone—The rest of the State, that area south and east of the boundary described above.
Northwest Goose Zone—That portion of the State encompassed by a line extending east from the North Dakota border along U.S. Highway 2 to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north along CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to STH 1, east along STH 1 to CSAH 28 in Pennington County, north along CSAH 28 to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in Roseau County, north along CSAH 9 to STH 11, west along STH 11 to STH 310, and north along STH 310 to the Manitoba border.
Colorado—The Central Flyway portion of the State except the San Luis Valley (Alamosa, Conejos, Costilla, Hinsdale, Mineral, Rio Grande, and Saguache Counties east of the Continental Divide) and North Park (Jackson County).
Kansas—That portion of the State west of a line beginning at the Oklahoma border, north on I–35 to Wichita, north on I–135 to Salina, and north on U.S. 81 to the Nebraska border.
Montana—The Central Flyway portion of the State except for that area south and west of Interstate 90, which is closed to sandhill crane hunting.
Regular-Season Open Area—Chaves, Curry, De Baca, Eddy, Lea, Quay, and Roosevelt Counties.
Middle Rio Grande Valley Area—The Central Flyway portion of New Mexico in Socorro and Valencia Counties.
Estancia Valley Area—Those portions of Santa Fe, Torrance and Bernallilo Counties within an area bounded on the west by New Mexico Highway 55 beginning at Mountainair north to NM 337, north to NM 14, north to I–25; on the north by I–25 east to U.S. 285; on the east by U.S. 285 south to U.S. 60; and on the south by U.S. 60 from U.S. 285 west to NM 55 in Mountainair.
Southwest Zone—Sierra, Luna, Dona Ana Counties, and those portions of Grant and Hidalgo Counties south of I–10.
Area 1—That portion of the State west of U.S. 281.
Area 2—That portion of the State east of U.S. 281.
Oklahoma—That portion of the State west of I–35.
South Dakota—That portion of the State west of U.S. 281.
Zone A—That portion of Texas lying west of a line beginning at the international toll bridge at Laredo, then northeast along U.S. Highway 81 to its junction with Interstate Highway 35 in Laredo, then north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, then northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at Junction, then north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, then east along U.S. Highway 62 to the Texas–Oklahoma State line.
Zone B—That portion of Texas lying within boundaries beginning at the junction of U.S. Highway 81 and the Texas–Oklahoma State line, then southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, then southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, then southwest along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, then northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in the town of Junction, then north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, then east along U.S. Highway 62 to the Texas–Oklahoma State line, then south along the Texas–Oklahoma State line to the south bank of the Red River, then eastward along the vegetation line on the south bank of the Red River to U.S. Highway 81.
Zone C—The remainder of the State, except for the closed areas.
Closed areas—(A) That portion of the State lying east and north of a line beginning at the junction of U.S. Highway 81 and the Texas–Oklahoma State line, then southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, then southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, then southwest along Interstate Highway 35 to its junction with U.S. Highway 290 East in Austin, then east along U.S. Highway 290 to its junction with Interstate Loop 610 in Harris County, then south and east along Interstate Loop 610 to its junction with Interstate Highway 45 in Houston, then south on Interstate Highway 45 to State Highway 342, then to the shore of the Gulf of Mexico, and then north and east along the shore of the Gulf of Mexico to the Texas–Louisiana State line.
(B) That portion of the State lying within the boundaries of a line beginning at the Kleberg-Nueces County line and the shore of the Gulf of Mexico, then west along the County line to Park Road 22 in Nueces County, then north and west along Park Road 22 to its junction with State Highway 358 in Corpus Christi, then west and north along State Highway 358 to its junction with State Highway 286, then north along State Highway 286 to its junction with Interstate Highway 37, then east along Interstate Highway 37 to its junction with U.S. Highway 181, then north and west along U.S. Highway 181 to its junction with U.S. Highway 77 in Sinton, then north and east along U.S. Highway 77 to its junction with U.S. Highway 87 in Victoria, then south and
Regular-Season Open Area—Campbell, Converse, Crook, Goshen, Laramie, Niobrara, Platte, and Weston Counties, and those portions of Johnson County east of Interstates 25 and 90 and Sheridan County east of Interstate 90.
Riverton-Boysen Unit—Portions of Fremont County.
Park and Big Horn County Unit—Portions of Park and Big Horn Counties.
Special-Season Area—Game Management Units 30A, 30B, 31, and 32.
LCRV Crane Hunt Area (Gillespie Dam Hunt Area in Unit 39)—That portion of the Gila River corridor in Unit 39 south of Gillespie Dam and north of Gila Bend located within the following townships and ranges: T2S R4W, T2S R5W, T3S R4W, T3S R5W, T4S R4W, and T5S R4W.
Special-Season Area—See State regulations.
Special-Season Area—Rich, Cache, and Unitah Counties and that portion of Box Elder County beginning on the Utah–Idaho State line at the Box Elder–Cache County line; west on the State line to the Pocatello Valley County Road; south on the Pocatello Valley County Road to I–15; southeast on I–15 to SR–83; south on SR–83 to Lamp Junction; west and south on the Promontory Point County Road to the tip of Promontory Point; south from Promontory Point to the Box Elder–Weber County line; east on the Box Elder–Weber County line to the Box Elder–Cache County line; north on the Box Elder–Cache County line to the Utah–Idaho State line.
Bear River Area—That portion of Lincoln County described in State regulations.
Salt River Area—That portion of Lincoln County described in State regulations.
Farson-Eden Area—Those portions of Sweetwater and Sublette Counties described in State regulations.
Uinta County Area—That portion of Uinta County described in State regulations.
North Zone—State Game Management Units 11–13 and 17–26.
Gulf Coast Zone—State Game Management Units 5–7, 9, 14–16, and 10 (Unimak Island only).
Southeast Zone—State Game Management Units 1–4.
Pribilof and Aleutian Islands Zone—State Game Management Unit 10 (except Unimak Island).
Kodiak Zone—State Game Management Unit 8.
Ruth Cay Closure Area—The island of Ruth Cay, just south of St. Croix.
Municipality of Culebra Closure Area—All of the municipality of Culebra.
Desecheo Island Closure Area—All of Desecheo Island.
Mona Island Closure Area—All of Mona Island.
El Verde Closure Area—Those areas of the municipalities of Rio Grande and Loiza delineated as follows: (1) All lands between Routes 956 on the west and 186 on the east, from Route 3 on the north to the juncture of Routes 956 and 186 (Km 13.2) in the south; (2) all lands between Routes 186 and 966 from the juncture of 186 and 966 on the north, to the Caribbean National Forest Boundary on the south; (3) all lands lying west of Route 186 for 1 kilometer from the juncture of Routes 186 and 956 south to Km 6 on Route 186; (4) all lands within Km 14 and Km 6 on the west and the Caribbean National Forest Boundary on the east; and (5) all lands within the Caribbean National Forest Boundary whether private or public.
Cidra Municipality and adjacent areas—All of Cidra Municipality and portions of Aguas Buenas, Caguas, Cayey, and Comerio Municipalities as encompassed within the following boundary: Beginning on Highway 172 as it leaves the municipality of Cidra on the west edge, north to Highway 156, east on Highway 156 to Highway 1, south on Highway 1 to Highway 765, south on Highway 765 to Highway 763, south on Highway 763 to the Rio Guavate, west along Rio Guavate to Highway 1, southwest on Highway 1 to Highway 14, west on Highway 14 to Highway 729, north on Highway 729 to Cidra Municipality boundary to the point of the beginning.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the 2010 summer flounder commercial quota allocated to the Commonwealth of Massachusetts has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Massachusetts for the remainder of calendar year 2010, unless additional quota becomes available through a transfer from another state. Regulations governing the summer flounder fishery require publication of this notification to advise Massachusetts that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in Massachusetts.
Effective 0001 hours, September 1, 2010, through 2400 hours, December 31, 2010.
Sarah Heil, Fishery Management Specialist,(978) 281–9257.
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.
The initial total commercial quota for summer flounder for the 2010 calendar
Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator), to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the
The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, September 1, 2010, further landings of summer flounder in Massachusetts by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2010 calendar year, unless additional quota becomes available through a transfer and is announced in the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the C season allowance of the 2010 total allowable catch (TAC) of pollock for Statistical Area 630 in the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), August 27, 2010, through 1200 hrs, A.l.t., October 1, 2010.
Obren Davis, 907–586–7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The C season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA is 5,912 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010). In accordance with § 679.20(a)(5)(iv)(B) the Administrator, Alaska Region, NMFS (Regional Administrator), hereby decreases the C season pollock allowance by 1,056 mt, to reflect the total amount of pollock TAC that has been caught prior to the C season in Statistical Area 630. Therefore, the revised C season allowance of the pollock TAC in Statistical Area 630 is 4,856 mt (5,912 mt minus 1,056 mt).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the C season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,846 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 24, 2010.
The AA also finds good cause to waive the 30–day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and announcement of public meeting.
In order to implement recent amendments to the Energy Policy and Conservation Act of 1975 (EPCA), the U.S. Department of Energy (DOE) proposes to amend its test procedures for residential direct heating equipment and pool heaters to provide for measurement of standby mode and off mode power use by these products. Where appropriate, the amendments would incorporate into the DOE test procedures relevant provisions from the International Electrotechnical Commission's (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power” (First Edition 2005–06), as well as language to clarify application of these provisions as they specifically relate to measurement of electrical standby mode and off mode power consumption in direct heating equipment and pool heaters.
This rulemaking also proposes a number of definitions for key terms. DOE has tentatively concluded that no amendments are necessary to the test procedure for residential water heaters to address standby mode and off mode power use, because the existing test procedures for water heaters already fully account for and incorporate the standby mode and off mode energy consumption. In addition, DOE announces a public meeting to discuss and receive comments on the issues presented in this notice.
DOE will hold a public meeting Friday, September 24, 2010, from 9 a.m. to 4 p.m., in Washington, DC. DOE must receive requests to speak at the public meeting before 4 p.m., Friday, September 10, 2010. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Friday, September 3, 2010.
DOE will accept comments, data, and information regarding the notice of proposed rulemaking (NOPR) before and after the public meeting, but no later than November 15, 2010. See section V, “Public Participation,” of this NOPR for details.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E–245, 1000 Independence Avenue, SW., Washington, DC 20585–0121. To attend the public meeting, please notify Ms. Brenda Edwards at (202) 586–2945. (Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the public meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures.)
Any comments submitted must identify the NOPR on Test Procedures for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters, and provide the docket number EERE–2009–BT–TP–0013 and/or Regulatory Information Number (RIN) 1904–AB95. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V, “Public Participation,” of this document.
Mr. Mohammed Khan, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Telephone: (202) 586–7892. E-mail:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Telephone: (202) 586–9507. E-mail:
For information on how to submit or review public comments and on how to participate in the public meeting, contact Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Telephone: (202) 586–2945. E-mail:
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291,
Under the Act, the overall program consists essentially of three parts: (1) Testing; (2) labeling; and (3) Federal energy conservation standards. The testing requirements consist of test procedures, prescribed under EPCA, that manufacturers of covered products must use as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted under EPCA and for representations about the energy consumption or energy efficiency of those products. Similarly, DOE must use these test procedures whenever testing is required in an enforcement action to determine whether the products comply with energy conservation standards adopted pursuant to EPCA.
Under 42 U.S.C. 6293, EPCA sets forth criteria and procedures for DOE's adoption and amendment of such test procedures. EPCA provides that any test procedures prescribed or amended shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments thereon. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))
DOE's test procedures for residential water heaters are found in the Code of Federal Regulations (CFR) at 10 CFR 430.23(e) and 10 CFR part 430, subpart B, appendix E. The test procedures include provisions for determining the energy efficiency (energy factor (EF)), as well as the annual energy consumption of these products.
The direct heating equipment covered product (not including furnaces) is referred to as “home heating equipment” in CFR. Unlike central heating furnaces, direct heating equipment is a covered product which is designed to furnish warmed air to the living space of a residence, directly from the device, without duct connections. There are separate test procedures for the two classes of home heating equipment, specifically 10 CFR 430.23(g) and 10 CFR part 430, subpart B, appendix G for unvented home heating equipment, and 10 CFR 430.23(o) and 10 CFR part 430, subpart B, appendix O for vented home heating equipment. Taken together, these two classes of home heating equipment represent “direct heating equipment,” the covered product listed at 42 U.S.C. 6292(a)(9). (Hereafter in this notice, the terms “vented heater” and “unvented heater” are used to describe the two types of direct heating equipment.) The vented heater test procedures include provisions for determining energy efficiency (annual fuel utilization efficiency (AFUE)), as well as annual energy consumption. The unvented heater test procedures currently have no provisions for determining energy efficiency; however, for unvented heaters that are the primary heating source for the home, there is a calculation of annual energy consumption based on a single assignment of active mode hours. For unvented heaters that are not the primary heating source for the home, there are no calculation provisions for efficiency or annual energy consumption.
DOE's test procedures for pool heaters are found at 10 CFR 430.23(p) and 10 CFR part 430, subpart B, appendix P. The test procedures include provisions for determining two energy efficiency descriptors (
On December 19, 2007, the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110–140, was enacted. The EISA 2007 amendments to EPCA, in relevant part, require DOE to amend the test procedures for all covered products to include measurement of standby mode and off mode energy consumption. Specifically, section 310 of EISA 2007 provides definitions of “active mode,” “standby mode,” and “off mode” (42 U.S.C. 6295(gg)(1)(A)); however, the statute permits DOE to amend these definitions in the context of a given product (42 U.S.C. 6295(gg)(1)(B)). The legislation requires integration of such energy consumption into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product, unless the Secretary determines that—(i) the current test procedures for a covered product already fully account for and incorporate the standby and off mode energy consumption of the covered product; or (ii) such an integrated test procedure is technically infeasible for a particular covered product, in which case the Secretary shall prescribe a separate standby mode and off mode
Under the statutory provisions introduced by EISA 2007, any such amendment must consider the most current versions of International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power” (First Edition 2005–06) and IEC Standard 62087, “Methods of measurement for the power consumption of audio, video, and related equipment” (Second Edition, 2008–09).
Accordingly, pursuant to section 310 of EISA 2007, DOE's residential water heater, direct heating equipment, and pool heater test procedures must account for standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)) DOE test procedures are needed that account for standby mode and off mode energy use (to the extent those operational modes apply to the products in question), in order to permit manufacturers to measure and certify compliance with future amended energy conservation standards that address those modes for the products that are the subject of this rulemaking. If finalized, today's proposal would also provide DOE a means for determining compliance with any future standards adopted for these products that include standby mode and off mode energy consumption.
In today's NOPR, DOE has tentatively concluded that for residential water heaters, there is no need to amend the test procedures pursuant to EISA 2007. Specifically, because the current test procedures for residential water heaters already fully account for and incorporate standby mode energy consumption, and because off mode is not applicable to water heaters, no amendment is required. (42 U.S.C. 6295(gg)(2)(A)(i)) A more complete discussion is provided below in section III.A.
For direct heating equipment and pool heaters, DOE is proposing to amend the test procedures in order to: (1) Address the statutory requirement to expand test procedures to incorporate measurement of standby mode and off mode power consumption; and (2) provide a foundation for DOE to develop, implement, and ensure compliance with amended energy conservation standards in the future that address the energy use of these products when in standby mode and off mode.
In addition to these statutory requirements for amended test procedures, EISA 2007 has three separate provisions regarding the inclusion of standby mode and off mode energy use in any energy conservation standard, which have bearing on the current test procedures rulemaking. First, test procedure amendments to include standby mode and off mode energy consumption shall not be used to determine compliance with standards established prior to the adoption of such test procedure amendments. (42 U.S.C. 6295(gg)(2)(C)) Second, standby mode and off mode energy use must be included into a single amended or new standard for a covered product adopted in a final rule after July 1, 2010. Finally, a separate standard for standby mode and off mode energy consumption is required if a single amended or new standard is not feasible. (42 U.S.C. 6295(gg)(3)(B))
In order to accommodate the above-mentioned first provision, DOE clarifies that today's proposed amended test procedures would not alter the measures of energy efficiency used in existing energy conservation standards; therefore, this proposal would not affect a manufacturer's ability to demonstrate compliance with previously-established standards. These amended test procedures would become effective, in terms of adoption into the CFR, 30 days after the date of publication in the
On November 24, 2006, DOE published a notice in the
The November 2006 Framework Document was issued before the enactment of EISA 2007, and consequently, it did not address the possible amendments to the test procedure associated with the EISA 2007 legislative charge (
As currently drafted, three of the test procedures for the products at issue in this rulemaking would require amendment to account for standby mode and off mode energy use as required by EISA 2007. Specifically, the test procedure for vented heaters would need added measurement and calculation provisions to integrate electrical standby mode and off mode energy use into the overall energy consumption equations. Fossil-fuel standby mode and off mode energy use is already integrated into the vented
In amending the current test procedures for residential direct heating equipment and pool heaters, DOE proposes to incorporate by reference IEC Standard 62301, “Household electrical appliances—measurement of standby power” (First Edition, 2005–06), regarding test conditions and test procedures for measuring standby mode and off mode energy consumption. DOE also proposes to incorporate product-specific definitions of “active mode,” “standby mode,” and “off mode” that are consistent with the guidance set forth under 42 U.S.C. 6295(gg)(1)(A). Further, DOE proposes to include in each test procedure additional language that would clarify the application of IEC Standard 62301 for measuring standby mode and off mode power consumption.
As noted above, DOE's test procedures for residential water heaters are found at 10 CFR 430.23(e) and 10 CFR part 430, subpart B, appendix E. These test procedures include provisions for determining the energy factor (EF) as well as the annual energy consumption of those products. As written, the test procedures include a full year accounting of energy use, both electricity and fossil fuel as applicable to a given unit. The following explains generally how water heater energy consumption is determined under the DOE test procedure. Specific measurements are required to determine the water heater's energy performance in providing a representative daily amount of hot water. The measurements are used to calculate two separate performance metrics: (1) Recovery efficiency, and (2) standby loss. Further calculations provide for a comprehensive efficiency descriptor (EF) which represents the overall efficiency of the water heater in providing the representative daily amount of hot water. Annual energy consumption and cost are estimated by extending this daily performance measured by EF to a full year (
There are some non-substantive differences in terms of the terminology used in the existing residential water heater test procedures as compared to what is used in EISA 2007. For example, the test procedure's standby loss is expressed as either an hourly standby loss or a heat loss coefficient, and while not identical, it can be equated to EISA 2007's “standby mode” energy use. In addition, the EISA 2007 definition of “off mode” appears inapposite to water heater operation. Water heaters are assumed to operate all year either actively heating water or incurring energy consumption (loss) in standby mode. There is no other mode of energy consumption conceivable for these products. Accordingly, to the extent those terms apply, DOE believes the full-year accounting of energy use as currently presented in the DOE water heater test procedure fully accounts for measurement of active mode, standby mode, and off mode energy consumption, as required by EISA 2007. Similarly, the water heater test procedure's efficiency descriptor Energy Factor is a complete accounting of all energy consumption possible for a residential water heater.
In consideration of the above, DOE has tentatively concluded that the current test procedures for water heaters already fully account for and incorporate measurement of standby mode and off mode energy consumption, as required by EISA 2007. (42 U.S.C. 6295(gg)(2)(A)(i))
As discussed above, EISA 2007 requires amendment of DOE's test procedures for direct heating equipment to account for standby mode and off mode energy consumption. This section discusses amendments for the test procedure provisions for vented heaters, and section III.C addresses test procedure amendments for unvented heaters. Specifically, the vented heater test procedures require additional measurement and calculation provisions in order to account for electrical standby mode and off mode energy use. Fossil-fuel standby mode and off mode energy use is already integrated into the vented heater test procedure.
As a first step in addressing the requirements of EISA 2007, DOE believes the relevant terms and concepts from that statute need clarification as they apply to vented heaters. While EISA 2007 provided definitions and concepts that are generally applicable and workable within the context of the existing vented heater test procedure, some clarifying language is necessary to address the specific characteristics of the products relevant to this rulemaking. The following paragraphs discuss these proposed clarifications.
Section 310(3) of EISA 2007 defines “active mode” as “* * * the condition in which an energy-using product—(I) is connected to a main power source; (II) has been activated; and (III) provides 1 or more main functions.” (42 U.S.C. 6295(gg)(1)(A)(i)) This statutory definition of “active mode” is comparable to what is referred to as “on-cycle” in the current vented heater test procedures. 10 CFR part 430, subpart B, appendix O, section 4.0
Section 310(3) of EISA 2007 defines “standby mode” as “* * * the condition in which an energy-using product—(I) is connected to a main power source; and (II) offers 1 or more of the following user oriented or protective functions: (aa) To facilitate the activation or deactivation of other functions (including active mode) by remote switch (including remote control), internal sensor, or timer; (bb) Continuous functions, including information or status displays (including clocks) or sensor-based functions.” (42 U.S.C.
Section 310(3) of EISA 2007 defines “off mode” as “* * * the condition in which an energy-using product—(I) is connected to a main power source; and (II) is not providing any standby or active mode function.” (42 U.S.C. 6295(gg)(1)(A)(ii)) For vented heaters, off mode would occur during the non-heating season when the vented heater is connected to power sources but is not activated to provide heat. The statutory definition of “off mode” is comparable to what is referred to as non-heating season in the current vented heaters test procedure. The proposed definitions are located in 10 CFR part 430, subpart B, appendix O, section 4.0
DOE believes these proposed definitions provide the clarification necessary to carry out the requirements of EISA 2007 without unduly complicating matters by addressing the potential for minor inaccuracies, such as those that might be caused by slight differences in run times for burners and air circulating fans (see section III.B.3 below). DOE requests comments on this approach for characterizing the active mode, standby mode, and off mode operation of vented heaters.
DOE has tentatively concluded that the existing test procedures for vented heaters already fully account for and integrate standby mode and off mode fossil fuel energy consumption.
The existing test procedure for vented heaters is a flue loss procedure which, accordingly, requires measurement of temperatures and percent concentrations of carbon dioxide (CO
From this relatively limited set of data, on-cycle and off-cycle losses are determined using empirical coefficients and a suite of calculations that address various design features such as manual and modulating controls. Direct measurement of draft coefficients for units that are installed with thermal stack dampers is required. At the manufacturer's discretion, this direct measurement procedure is optional for vented heaters without thermal stack dampers. The gas pilot light consumption is present during testing and is, therefore, accounted for in the off-cycle.
The test procedure's on-cycle and off-cycle provisions are essentially identical in meaning to the EISA 2007 statutory definitions of “active mode” and “standby mode,” respectively. This on-cycle/off-cycle format provides a complete accounting of gas energy use during the entire heating season. In EISA 2007 terminology, gas consumption in both active mode and standby mode is fully accounted for and integrated into the test procedure's primary efficiency metric, part-load fuel utilization efficiency.
A second efficiency descriptor, AFUE, provides an accounting of the non-heating-season fossil-fuel energy consumption (
Part-load efficiency is calculated for vented heaters with manual controls and thermal dampers. For all other vented heaters, the calculations produce an AFUE without separately calculating part-load efficiency. Nonetheless, regardless of whether part-load efficiency is separately calculated or not, AFUE represents a full accounting of annual fossil-fuel consumption (
In addition to the efficiency descriptors discussed above, the vented heater test procedure's annual energy consumption calculations also represent a complete accounting of fossil-fuel energy consumption.
In sum, the energy efficiency and consumption equations in the existing test procedures for vented heaters provide an entire year's accounting of fossil-fuel energy consumption (
In consideration of the above, and pursuant to section 310(2)(A)(i) of EISA 2007, DOE has tentatively concluded that the existing test procedures for vented heaters already fully account for and integrate standby mode and off mode fossil-fuel energy consumption.
Some vented heaters have electric auxiliaries. In most cases, the only electric auxiliary associated with vented heaters is the air circulating fan. However, it is conceivable that other auxiliaries, such as power burners and damper controls, could be present, and such devices may have associated electric standby mode and off mode energy consumption. The vented heater test procedure, as written, requires measurement of maximum auxiliary electric power and does not distinguish separate measurements of multiple components. For vented heaters so equipped, this maximum auxiliary electric power measurement would include the total active wattage of multiple auxiliaries. DOE believes this single measurement of maximum active wattage coupled with the estimate of active hours, discussed below in section III.B.3, constitutes a full accounting of what EISA 2007 refers to as active mode electrical consumption. Accordingly, no amendments are offered today to expand the active mode accounting of electrical energy consumption.
However, since operation of vented heaters with electric auxiliaries may also result in electric energy consumption in standby mode and off mode, and since electric standby mode and off mode are not accounted for, it will be necessary to amend the vented home heating equipment test procedures. First, it is necessary to include a measurement of the standby mode and off mode electrical consumption rate (
It is further clarified in this added section that the existing test procedure specifications for ambient temperature and voltage shall apply in lieu of the IEC 62301 standard provisions for these parameters. This is done to avoid the possibility of unnecessary burden that might result if the slightly different IEC provisions were required. These parameters have little bearing on the measurement of electrical standby mode and off mode energy consumption as long as they are reasonably uniform during the test. The existing test procedure requires uniform control of these parameters and, thus, should suffice for these added measurements.
A second amendment is needed to specify how to calculate the annual electrical standby mode and off mode energy consumption from the measured wattages. This can be done by adding a new calculation subsection within existing section 4.0,
No changes to the current regulating quotient, AFUE, are proposed. Therefore, the proposed test procedure amendments related to standby mode and off mode would not impact testing and certification under the existing energy conservation standard (which does not currently address standby mode and off mode energy consumption in a comprehensive manner). DOE considered proposing an integrated AFUE that would incorporate the standby mode and off mode energy consumption into the existing AFUE by adding this additional energy consumption to the active energy consumption within the AFUE quotient. However, DOE has determined that such integration is technically infeasible for vented heaters. This is because the standby mode and off mode energy usage is essentially not measureable due to the fact that most manufacturers' ratings of AFUE (as well as the current energy conservation standards) are presented to the nearest whole number, and the magnitude of the energy for standby mode and off mode would be so comparatively small that it would be unlikely to change the reported value. For example, assuming a representative 4 watts
DOE's proposed approach would allow for the measurement of standby mode and off mode electrical energy consumption of different vented heater products. Although the magnitude of energy savings may be small for a given unit, it could be substantial when aggregated across the full range of covered products over the 30-year analysis period. DOE plans to further address the standby mode and off mode electrical energy consumption of vented heaters in the next standards rulemaking.
DOE seeks comment on its tentative conclusion that it would be technically infeasible to adopt an integrated AFUE for vented heaters, as well as the accuracy of the assumptions made regarding the relative magnitude of the standby mode and off mode energy consumption for vented heaters.
As mentioned above in section III.B.2, today's proposal would assign active mode hours of a particular vented heater as its burner operating hours (BOH). BOH is a calculated value in the existing test procedure for gas-fired and oil-fired vented heaters. BOH is determined by estimating the expected annual heating load and deducing the burner on hours necessary to address the annual heating load. BOH is exactly the active mode hours for the burner itself. However, the blower and other electric auxiliaries may have different active mode hours because of intentional time delays and overruns. This possible slight inaccuracy in the active mode hours accounting would be expected to have an insignificant effect on the overall accounting of standby mode and off mode energy consumption, considering the order of magnitude difference between standby mode and off mode hours compared to active mode hours. For example, assuming a representative BOH of 800 hours, the corresponding standby mode and off mode hours would be 7,960 hours (8,760−800); accordingly, a one-percent error in BOH would result in a 0.1-percent error in standby mode and off mode accounting. Therefore, considering the complexity and increased burden of expanding the accounting to provide detailed auxiliary run hours with no significant improvement in quantifying the magnitude of standby mode and off mode energy consumption, DOE maintains that assigning active mode hours for all electrical auxiliaries as burner operating hours is both uniform and reasonable.
Today's proposed amendments allow for a single wattage (
DOE believes the phrases “reduction or elimination” and “seasonal off switch” are unambiguous and clear enough to direct the testing official as to when a separate measurement of off mode wattage is needed. DOE invites comments on the appropriateness and workability of these provisions.
As noted previously, EPCA, as amended by EISA 2007, requires that test procedures be amended to include standby mode and off mode energy consumption, taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission. (42 U.S.C. 6295(gg)(2)(A)) Today's amendments would reference the IEC Standard 62301 to obtain the standby mode and off mode measured wattage. The amended test procedure would use these measured wattages in calculations to accomplish the incorporation of standby mode and off mode energy consumption into the test procedures. DOE reviewed the IEC Standard 62301 and believes it is generally applicable to vented heater testing, although some clarification is needed. Specifically, because there is a possible conflict with provisions of the existing procedures, DOE is clarifying in the proposed standby mode and off mode measurement provisions that the accuracy and precision provisions of the IEC Standard 62301 are to be used in lieu of the existing test procedure accuracy provisions. The issues addressed in the IEC Standard 62301 of supply voltage waveform and power measurement accuracy apply to any measurement of low electrical power, including the low-power measurement for vented heater standby mode and off mode. The existing test procedures' accuracy and measurement provisions will still apply to the measurement of active mode electricity consumption. Further, it is clarified that the existing test procedure's specification of room ambient temperature and voltage, and not the corresponding specifications of the IEC Standard, will apply for these measurements. The IEC specification of room ambient conditions is slightly more restrictive than those of the existing DOE test procedure. However, DOE has tentatively concluded that there would be no meaningful difference in wattage measurement resulting from the two differing specifications. Overall, IEC Standard 62301 is concise and well organized, and its use should not pose a significant burden to anyone having the ordinary skill and knowledge associated with the vented heater manufacturing and testing industries.
DOE also reviewed IEC Standard 62087, which specifies methods of measuring the power consumption of television (TV) receivers, video cassette recorders (VCRs), set top boxes, audio equipment, and multi-function equipment for consumer use. IEC Standard 62087 does not, however, include measurement for the power consumption of electrical appliances such as vented heaters. Therefore, DOE has tentatively concluded that IEC Standard 62087 is unsuitable for use regarding the proposed amendments to the vented heater test procedures.
Consistent with the requirements of EISA 2007, today's proposal also includes test procedure amendments to address the standby mode and off mode energy consumption of unvented heaters. These amendments are less involved, as compared to those for vented heaters. Specifically, to effect the necessary changes for unvented heaters, DOE proposes to add only certain measurement provisions to the existing test procedure. DOE has tentatively concluded that no added or amended calculations to quantify annual standby mode and off mode energy use are necessary. The reasons for this approach are discussed below in detail. DOE believes that its proposed amendments are appropriate for unvented heater products and are consistent with the direction provided in EISA 2007 for both test procedures and standards. (42 U.S.C. 6295(gg)(2) and (3))
By way of background, the unvented heater test procedure is found at 10 CFR 430.23(g) and 10 CFR part 430, subpart B, appendix G. This test procedure applies to the active mode of both electric and fossil-fueled unvented heaters, and it only requires measurement of input energy rate (
DOE realizes that this product subcategory presents a unique set of circumstances when addressing the applicable provisions of EISA 2007, particularly the requirement to eventually include standby mode and off mode energy consumption in a future energy conservation standard. First, unlike other test procedures, appendix G does not include energy efficiency or energy use metrics that would allow for the integration of standby mode and off mode energy use. Instead, it merely provides a measure of energy consumption for that unit. As a consequence, there currently exists no basis to establish what EISA 2007 would call a single or integrated standard for the energy efficiency of unvented heaters.
Second, standby mode energy use (defined as energy use during the heating season when the heater is not on) is as effective in heating the space as active mode energy use. Therefore, this energy consumption is not energy waste, but, rather, it is useful output. Accordingly, it may not be beneficial to measure this energy use or appropriate to consider its regulation in an energy conservation standard, unless it is
Finally, off mode energy consumption (defined as non-heating-season energy consumption) could be considered ineffective energy use and, accordingly, could be minimized by prescribing a separate energy conservation standard. However, defining a representative off mode for this subcategory is difficult because of the lack of data on consumer use. For example, prior to the present rulemaking proceeding, DOE has not been aware of data, or attempted to collect data, on the fraction of the year unvented heaters might be unplugged or otherwise disconnected from the energy source, and the extent to which pilot lights are turned off during the non-heating season.
This unique set of circumstances formed the basis of an inquiry to nine manufacturers of unvented heaters, a number which DOE believes would provide representative input from the affected industry. Specifically, a request for information regarding possible standby mode and off mode energy use for unvented heaters was sent to manufacturers in March 2009. This request for information outlined the issue and asked specific questions designed to aid DOE in addressing the requirements of EISA 2007 for these products. The letter and responses received are available at:
Basically, all respondents agreed as to the unique set of circumstances for this product type. The respondents reported that standby mode and off mode energy use is present in some designs of unvented heaters. Specifically, fossil-fueled unvented heaters could have constant-burning pilot lights and electric remote controls, both of which would contribute to standby mode and off mode energy use. Similarly, electric heaters could have remote controls that would contribute to off mode energy use. All respondents agreed that it is difficult to define an average representative use cycle for these products, particularly in the off mode. One respondent, the Association of Home Appliance Manufacturers (AHAM), suggested that the off mode be ignored entirely for portable electric heaters, considering the evidence of these units being unplugged when not in use. Specifically, AHAM stated that consumer data, collected by The Stevenson Group for AHAM in 2004, reports that 86 percent of the consumers unplug their portable electric heaters per the safety instructions. (AHAM, No. 2 at pp. 1–2)
In consideration of all of above, DOE believes that the best way to satisfy the EISA 2007 test procedure requirements is to propose additional measurement provisions for standby mode and off mode energy rates without attempting to define an average representative use cycle. The added measurement provisions for pilot lights would be similar those already incorporated in vented heater test procedure. The added measurement provisions for electrical standby mode and off mode energy use rates would be similar to what is proposed today for vented heaters. Both of these added provisions would allow for exemption from measurement if there is means to disconnect the power source when not in use and instructions to do so are clearly visible. This exemption from measurement is identical to what is currently in the existing vented heater test procedures as applied to pilot lights on manually-controlled heaters. DOE believes this exemption from measurement should apply to unvented heaters so equipped.
The proposed approach does not relinquish DOE's authority to regulate unvented direct heating equipment, given the statutory directive to consider amended standards for “direct heating equipment” generally. (42 U.S.C. 6295(e)) The results of the additional measurements provisions could be used to regulate standby mode and off mode energy use for these products.
DOE is interested in receiving comment on its tentative decision not to define a representative use cycle for unvented heaters and the sufficiency of the proposed amendments. DOE is particularly interested in data that might allow for more complete treatment of unvented heaters.
As indicated above, EISA 2007 requires amendment of the test procedures for pool heaters to account for standby mode and off mode energy consumption. The applicable pool heater test procedure is found at 10 CFR 430.23(p) and 10 CFR part 430, subpart B, appendix P. As explained below, consumption of fossil fuel in the standby mode is already included in the existing test procedure's calculations. However, DOE is proposing to add a specific measurement procedure for fossil-fuel standby mode and off mode energy consumption, because there is currently no protocol for actual measurement of such energy consumption. In addition, measurement and calculation provisions need to be added for off mode fossil-fuel energy consumption. Furthermore, the test procedures need additional measurement and calculation provisions to integrate electrical standby mode and off mode energy use, as required by EISA 2007. The sections below explain the existing test procedure's requirements for measuring the fossil-fuel and electrical energy consumption of pool heaters, followed by a discussion of DOE's proposed amendments pertaining to the measurement of standby mode and off mode energy consumption for these products.
The existing DOE test procedure for pool heaters is based on a steady-state measure of thermal efficiency in active mode, as specified by ANSI Standard Z21.56–1994, “Gas-Fired Pool Heaters.” (It is noted that “thermal efficiency” is specified by statute as the regulating efficiency descriptor. (42 U.S.C. 6291(22)) It is also noted that the current version of this ANSI standard was released in 2006. Upon review, DOE found no substantive differences between the 1994 version and the 2006 version, and accordingly, DOE is proposing to update the incorporation by reference in DOE's regulations at 10 CFR 430.3.) The DOE pool heater test procedure as it now appears in 10 CFR part 430, subpart B, appendix P extends this ANSI procedure by creating a heating seasonal efficiency descriptor (EFFY
Fossil-fuel energy consumption in the standby mode, which is essentially the pilot light energy consumption (Q
The existing test procedures' heating seasonal efficiency includes an accounting of fossil-fuel standby mode that DOE believes is consistent with
The existing DOE pool heater test procedure does not account for off mode fossil-fuel energy consumption (
As mentioned in section III.D.1, the electricity consumption during active mode is incorporated in the heating seasonal efficiency descriptor, but electricity consumption during the standby mode or off mode is not considered in the existing DOE pool heater test procedure. Under the modified approach, DOE proposes to introduce standby mode and off mode electrical energy consumption measurement provisions and to incorporate the results into the test procedures' energy usage and efficiency equations. However, for pool heaters with a seasonal off switch, off mode electrical energy consumption would be assigned a value of zero.
ANSI/ASHRAE Standard 146–2006, “Method of Testing and Rating Pool Heaters,” extends the procedure specified by ANSI Standard Z21.56 by including a test in which the energy consumption in standby mode is measured. During this 60-minute standby test, the thermostat setting for the pool heater is set low enough so that the pool heater does not enter active mode during the test. The total electricity and natural gas energy consumption is measured over this 60-minute period and added to provide a metric for standby mode energy consumption. Today's NOPR proposes to adopt a similar approach to measure standby mode and off mode energy consumption. DOE believes that ANSI/ASHRAE 146–2006 cannot be adopted “as-is” because there are some terminology differences specific to implementation of the requirements of EISA 2007. For example, there is no measurement or definition of “off mode” in ANSI/ASHRAE 146–2006.
The proposed amendments to appendix P would modify the existing test procedure by adding a standby mode energy consumption measurement that is similar to that used in the ASHRAE Standard 146, “Method of Testing for Rating Pool Heaters,” but that is tailored to address the specific concepts of EISA 2007. Specifically, a definition section would be added to the test procedure to clarify the EISA 2007 definitions of “active mode,” “standby mode,” and “off mode,” as applied to pool heaters. Separate measurement and calculation provisions would be added to allow separate quantification of standby mode and off mode energy consumption. A new efficiency descriptor, integrated thermal efficiency, would replace the heating seasonal efficiency to allow for integration of standby mode and off mode energy consumption into a single efficiency measure. The term “integrated thermal efficiency” is used to maintain consistency with the statute. This approach would allow for the integration and incorporation of standby mode and off mode energy consumption into both the test procedure and an energy conservation standard, as called for in 42 U.S.C. 6295(gg)(2)(A) and 42 U.S.C. 6295(gg)(3) respectively. The thermal efficiency descriptor will remain in the test procedure to provide the regulating basis for the current energy conservation standard.
Unlike the integrated AFUE for vented heaters discussed above, DOE has tentatively concluded that the integrated thermal efficiency is technically feasible and would provide measurable performance differentiation, because the added standby mode and off mode energy consumption is significant relative to the active energy consumption of the original thermal efficiency. There are two contributing factors to this conclusion: (1) The added energy consumption includes both fossil fuel and electrical energy consumption, and (2) the active energy consumption is relatively smaller because of the smaller number of active mode hours for pool heaters as compared to vented heaters. As a result, the pilot light alone would be expected to have the effect of reducing the thermal efficiency by a few percentage points.
Additionally, the proposed amendments to appendix P would update the references to ANSI Standard Z21.56–2006, the most recent version of that standard. As noted above, DOE has compared this version with the currently-referenced version from 1994 and found no substantive differences between the two test methods.
As noted previously, EPCA, as amended by EISA 2007, requires that DOE test procedures be amended to include standby mode and off mode energy consumption, taking into consideration the most current versions of Standards 62301 and 62087 of the International Electrotechnical Commission. (42 U.S.C. 6295(gg)(2)(A)) Today's amendments to the pool heater test procedure would incorporate by reference IEC Standard 62301 to obtain the standby mode and off mode measured wattage. Today's proposed test procedure amendments would use these measured wattages in calculations to accomplish the incorporation of standby mode and off mode energy consumption into the test procedures.
DOE is proposing the following clarifications to avoid any conflicts between the existing test procedure and IEC Standard 62301. First, DOE proposes to clarify that the room ambient temperature and voltage
DOE also reviewed IEC Standard 62087, which specifies methods of measuring the power consumption of TV receivers, VCRs, set top boxes, audio equipment, and multi-function equipment for consumer use. IEC Standard 62087 does not, however, include measurement for the power consumption of electrical appliances such as pool heaters. Therefore, DOE has tentatively concluded that IEC Standard 62087 is unsuitable for use regarding the proposed amendments to the pool heater test procedures.
Today's proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this proposed action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule would prescribe test procedure amendments that would be used to determine compliance with energy conservation standards for the products that are the subject of this rulemaking. Although DOE considers test procedure amendments for residential water heaters, direct heating equipment, and pool heaters in this rulemaking, DOE proposes amendments to the test procedures for pool heaters and direct heating equipment only. For the reasons stated earlier in the preamble, DOE has tentatively determined that amendments to the test procedure for water heaters are not necessary.
The Small Business Administration (SBA) considers an entity to be a small business if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. The threshold values set forth in these regulations use size standards and codes established by the North American Industry Classification System (NAICS) that are available at
Concurrent to this rulemaking for test procedures, DOE has been in the process of developing amended energy conservation standards for the products covered in this rulemaking. On December 11, 2009, DOE published a Notice of Proposed Rulemaking and Public Meeting for Energy Conservation Standards for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters in the
In the December 11, 2009 NOPR for energy conservation standards, DOE identified 12 small DHE manufacturers and one small pool heater manufacturer that can be considered small businesses. Pool heater manufacturers and the vented heater manufacturers of the DHE product class are the same as identified in the standards notice. An estimate of the number of manufacturers of unvented heaters was not developed as part of the standards analysis because, for reasons stated in the 2009 NOPR, DOE believes it is unnecessary to set minimum efficiency standards for unvented DHE. 74 FR 65852, 65866 (Dec. 11, 2009). Based on its interviews with manufacturers, DOE has tentatively determined that there are three unvented DHE manufactures considered small businesses.
For the reasons explained below, DOE has tentatively concluded that the proposed rule would not have a significant impact on either small or large manufacturers under the applicable provisions of the Regulatory Flexibility Act. The proposed rule would amend DOE's test procedures for direct heating equipment and pool heaters by incorporating testing provisions to address standby mode and off mode energy consumption. The proposed procedures involve measuring power input when the direct heating equipment or pool heater is in standby mode and off mode during testing. Pool heater proposed test procedure amendments would require measurement of both fossil fuel and electric energy use in standby mode and off mode. DHE proposed test procedure amendments would require measurement of only electrical energy use in standby mode and off mode.
The duration of the electrical standby mode and off mode testing for DHE is also short, approximately five minutes if the power supply is stable and ten minutes if the power supply is not stable. For example, testing with unstable power supply might require five minutes to determine that it is in fact unstable followed by an additional integrated test measurement of five minutes. The duration of the fossil fuel and electrical standby mode and off mode test proposed for pool heaters is one hour. This one hour time period is consistent with the industry consensus for such measurement (
Accordingly, DOE tentatively concludes and certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will provide its certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) which has been approved by OMB under control number 1910–1400. Public reporting burden for compliance reporting for energy and water conservation standards is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to DOE (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this rulemaking, DOE is proposing test procedure amendments that it expects would be used to develop and implement future energy conservation standards for residential direct heating equipment and pool heaters. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 64 FR 43255 (August 10, 1999). The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States, and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in developing such regulations. 65 FR 13735. DOE has examined this proposed rule and determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) Therefore, Executive Order 13132 requires no further action.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation clearly specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4; 2 U.S.C. 1501
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Today's proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 15, 1988), DOE has determined that this proposed regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (Pub. L. 106–554; 44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's notice under OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's proposed regulatory action to amend the test procedures for residential direct heating equipment and pool heaters to address standby mode and off mode energy use is not a significant regulatory action under Executive Order 12866. It has likewise not been designated as a significant energy action by the Administrator of OIRA. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the DOE Organization Act (Pub. L. 95–91; 42 U.S.C. 7101
The proposed modifications to the test procedures addressed by this proposed rule incorporate testing methods contained in the commercial standards, the International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power,” Publication 62301 First Edition 2005–06 and “American National Standards Institute (ANSI) Standard Z21.56–2006, “Gas-Fired Pool Heaters.” DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
The time, date, and location of the public meeting are listed in the
Any person who has an interest in the topics addressed in this notice, or who is a representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting. Such persons may hand-deliver requests to speak to the address shown in the
DOE requests persons scheduled to make an oral presentation to submit an advance copy of their statements at least one week before the public meeting. DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Program. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. A court reporter will be present to record the proceedings and prepare a transcript.
The public meeting will be conducted in an informal, conference style. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements. At the end of all prepared statements on each specific topic, DOE will permit participants to clarify their statements briefly and to comment on statements made by others.
Participants should be prepared to answer DOE's and other participants' questions. DOE representatives may also ask participants about other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures needed for the proper conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.
DOE will make the entire record of this proposed rulemaking, including the transcript from the public meeting, available for inspection at the U.S. Department of Energy, 6th Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586–2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Copies of the transcript will be posted on the DOE Web site and are also available for purchase from the transcribing reporter.
DOE will accept comments, data, and information regarding the proposed rule before or after the public meeting, but no later than November 15, 2010. Comments, data, and information submitted to DOE's e-mail address for this rulemaking should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Stakeholders should avoid the use of special characters or any form of encryption, and wherever possible, comments should include the electronic signature of the author. Comments, data, and information submitted to DOE via mail or hand delivery/courier should include one signed paper original. No telefacsimiles (faxes) will be accepted.
Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document that includes all of the information believed to be confidential, and one copy of the document with that information deleted. DOE will make its own determination as to the confidential status of the information and treat it accordingly.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information was previously made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
Although comments are welcome on all aspects of this rulemaking, DOE is particularly interested in receiving comments and views of interested parties on the following issues:
1.
2.
3.
4.
5.
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE is proposing to amend part 430 of chapter II, subchapter D of title 10 of the Code of Federal Regulations, to read as set forth below:
1. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
2. Section 430.3 is amended by revising paragraph (c)(13) to read as follows:
(c) * * *
(13) ANSI Z21.56–2006 (“ANSI Z21.56”), Standard for Gas-Fired Pool Heaters, approved December 13, 2005, IBR approved for Appendix P to Subpart B.
3. Section 430.23 is amended by:
a. Removing the words “section 4.2 of appendix P” in paragraph (p)(1)(i) and adding in their place “section 5.2 of appendix P”, and
b. Removing the words “section 4.3 of appendix P” in paragraph (p)(1)(ii) and adding in their place “section 5.3 of appendix P”.
4. Appendix G to Subpart B of Part 430 is amended in section 2 by adding new sections 2.3, 2.3.1, 2.4, and 2.4.1 to read as follows:
2.
2.3
2.3.1 The measurement of Q
2.4
2.4.1 The measurement of P
5. Appendix O to Subpart B of Part 430 is amended by:
a. Adding a Note after the heading;
b. Redesignating sections 1.1 through 1.33 as follows:
c. Adding new sections 1.1, 1.16, 1.22, 1.25 and 1.30;
d. Adding new sections 3.7, 3.7.1, and 3.7.2; and
e. Revising sections 4.6.3 and 4.6.3.1, and adding a new section 4.7.
The additions and revisions read as follows:
The procedures and calculations that refer to standby mode and off mode energy consumption, (
1.0.
1.1 “Active mode” means the condition during the heating season in which the vented heater is connected to the power source, and either the burner or any electrical auxiliary is activated.
1.16 “IEC 62301” means the test standard published by the International Electrotechnical Commission, titled “Household electrical appliances—Measurement of standby power,” Publication 62301 First Edition 2005–06. (incorporated by reference; see § 430.3)
1.22 “Off mode” means the condition during the non-heating season in which the vented heater is connected to the power source, and neither the burner nor any electrical auxiliary is activated.
1.25 “Seasonal off switch” means the control device, such as a lever or toggle, on the vented heater that affects a difference in off mode energy consumption as compared to standby mode consumption.
1.30 “Standby mode” means the condition during the heating season in which the vented heater is connected to the power source, and neither the burner nor any electrical auxiliary is activated.
3.0
3.7
3.7.1
3.7.2
4.0
4.6.3
4.6.3.1 For vented heaters with two stage or modulating controls, E
4.7
6. Appendix P to Subpart B of Part 430 is revised to read as follows:
The procedures and calculations that refer to standby mode and off mode energy consumption (
1.
1.1.
1.2
1.3
1.4
1.5
2.
2.1
2.2
2.3
2.3.1
For pool heaters with a seasonal off switch, no off-mode test is required.
2.3.2
For pool heaters without a seasonal off switch, the test method for testing the energy consumption of the pool heater is as described in sections 3 through 5 below.
3.
3.1
3.2
4.
4.1
4.2
4.3
4.3.1
4.3.2
5.
5.1
5.2
5.3
5.4 Integrated thermal efficiency.
5.4.1 Calculate the seasonal useful output of the pool heater as:
5.4.2 Calculate the annual input to the pool heater as:
5.4.3 Calculate the pool heater integrated thermal efficiency (TE
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for certain Model 747–100, 747–100B, 747–100B SUD, 747–200B, 747–200C, 747–200F, 747–300, 747–400, 747–400D, 747–400F, 747SR, and 747SP series airplanes. The original NPRM would have required inspections for scribe lines in affected lap and butt splices, wing-to-body fairings locations, and external repair and cutout reinforcement areas; and related investigative and corrective actions if necessary. The original NPRM resulted from reports of scribe lines found at lap joints and butt joints, around external doublers and antennas, and at locations where external decals had been cut. This action revises the original NPRM by revising certain compliance times including reducing the compliance time for certain repetitive inspections. This supplemental NPRM also proposes to add inspections for certain airplanes. We are proposing this AD to detect and correct scribe lines, which can develop into fatigue cracks in the skin and cause sudden decompression of the airplane.
We must receive comments on this supplemental NPRM by September 24, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; e-mail
You may examine the AD docket on the Internet at
Nicholas Han, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 917–6449; fax (425) 917–6590.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments
We will post all comments we receive, without change, to
We issued a notice of proposed rulemaking (NPRM) (the “original NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Model 747–100, 747–100B, 747–100B SUD, 747–200B, 747–200C, 747–200F, 747–300, 747–400, 747–400D, 747–400F, 747SR, and 747SP series airplanes. That original NPRM was published in the
Since we issued the original NPRM, Boeing has issued Service Bulletin 747–53A2563, Revision 3, dated June 11, 2009; and Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010. The procedures in Revision 3 are essentially the same as those in Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, which we referred to as the appropriate source of service information for accomplishing the actions proposed in the original NPRM. However, Revision 3 of this service bulletin changes the initial threshold for the inspection at certain lap joints and changes the repeat inspection intervals (including some reductions in inspection intervals) for many lap joint inspection areas. Revision 3 of this service bulletin also adds more work for airplanes that were previously inspected in Area 1 and Area 2 in accordance with Boeing Alert Service Bulletin 747–53A2563, dated March 29, 2007; Boeing Alert Service Bulletin 747–53A2563, Revision 1, dated November 8, 2007; or Boeing Service Bulletin 747–53A2563, Revision 2, dated June January 3, 2008.
Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010:
• Revises the repeat inspection interval data for lap joint and butt joint areas that have scribe damage which are inspected under the Limited Return to Service (LRTS) inspection program.
• For airplanes identified as Group 2, Group 3 Configuration 2, Group 4, Group 6, and Group 8 airplanes in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010: Adds detailed inspections for scribe lines of the S–18L lap splice from station (STA) 1780 to STA 1920 (on the main deck side cargo door) to inspection area 3.
• For airplanes identified as Group 1 and Group 2 airplanes in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010: Adds detailed inspections for scribe lines of the S34R lap splice from STA 1810 to STA 1920 (on the aft lower lobe cargo door).
• For airplanes identified as Group 3 and Group 4 airplanes in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010: Adds detailed inspections for scribe lines of the S–6L and S–6R lap splice from STA 1000 to 1220 to inspection area 3.
• Adds general repair instructions for lap joint locations with scribe lines, but no cracks in Paragraph 3.B. of Part 17 in the work instructions and in a new Appendix F.
Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, specifies that no more work is necessary on Group 5, Group 7, and Group 9 airplanes that were inspected in accordance with Boeing Service Bulletin 747–53A2563, Revision 3, dated June 11, 2009.
Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, states that if scribe lines were found previously and are being inspected as part of the LRTS program, the repeat inspections are done in accordance with Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010.
Japan Airlines (JAL) reports that certain structures prevented the accomplishment of the inspection specified in Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008. JAL therefore believes that more detailed information in the service bulletin is necessary to prevent operator inconvenience. We infer that the commenter is requesting that we delay issuing the final rule until Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, is revised to address these concerns.
KLM reports that some of the nondestructive test (NDT) inspections could not be performed according to the procedures specified in Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, without modifying the process itself. KLM adds that the inspection areas and details are vague, ambiguous, and subject to misinterpretation. KLM requests that, to eliminate requests for alternative methods of compliance (AMOCs) related to this matter, we delay issuing the final rule until these matters are resolved.
We agree that clarification may be necessary. While the commenters did not provide specific details of the difficulties they encountered, Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, clarifies multiple steps and procedures as described previously. We have revised this supplemental NPRM to refer to Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010.
JAL states that the NPRM would require operators to contact the manufacturer for a method to repair discrepancies. (Although Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, specifies this directive, the original and this supplemental NPRM propose to require operators to contact the FAA for a repair method.) JAL anticipates many such inquiries from operators, resulting in delayed responses from the manufacturer. The commenter requests that we delay issuing the final rule until a typical repair is incorporated into the structural repair manual (SRM).
We do not agree with the commenter to delay the final rule until a typical repair can be incorporated into the SRM. Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, provides procedures for an inspection to determine the extent of scribe lines on the airplanes. This service bulletin refers to several SRMs as a source of information for repairing cracks. For certain repair instructions, this service bulletin also specifies to contact Boeing for repair instructions; however, paragraph (i) of this supplemental NPRM would require that operators repair in a manner approved by the FAA. In addition, Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, provides a LRTS inspection program for scribe lines found during the required inspections. We note the existing Model 747 SRMs referenced in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, have lap splice repairs that are acceptable to repair scribe line damage. We have not changed the supplemental NPRM regarding this issue.
JAL notes that the inspection interval is the same from butt joint to butt joint or lap joint to lap joint. JAL states that it understands that the stress value can be provided (
We infer that the commenter is asking if the repetitive inspection intervals along a lap splice from butt joint to butt joint, or along a butt joint from lap splice to lap splice, may be extended in certain areas if the local stresses are used to determine the repetitive intervals. We do not find any benefit in variable repetitive inspection intervals for a lap splice or butt splice. The repetitive inspection intervals have been determined after a review of the specific stresses the commenter notes, and then the stress that provided the lowest repetitive interval was used to simplify the inspection along a lap or butt splice. If each stringer or frame bay stress were used along the entire joint, the work instructions would become too large to manage and accomplish in a reasonable manner. Also, Boeing has released Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, and this revision includes improved data for the repeat inspection interval for lap joint and butt joint areas. We have not changed the supplemental NPRM in regard to this issue.
British Airways (BA) requests that we revise the inspection threshold for certain airplanes. BA states that the proposed inspection thresholds penalize operators of airplanes with lower flight cycles. BA recommends that we review Boeing's Fleet Team Resolution Process Item 04134, which discusses the check level required to accomplish the Area 1 inspections. According to the commenter, operator consensus indicates these inspections will require a D check. BA suggests that airplanes with fewer than 17,500 flight cycles be assigned a threshold of the earlier of the next D check following 15,000 total flight cycles, or 19,000 total flight cycles, whichever is sooner.
We do not agree to revise the inspection threshold for certain airplanes. We reviewed the Boeing Fleet Team Resolution Process Item 04134, which suggests that a D check would be the suitable opportunity to accomplish the scribe line inspections. We do not specify compliance times in terms of “letter checks.” Since maintenance schedules vary among operators, we have determined that the compliance times as proposed are appropriate. The minimum grace period for compliance with this AD is 1,500 flight cycles for airplanes with fewer than 17,500 total flight cycles, which corresponds to approximately 3 years based on a typical utilization of 500 flight cycles per year for long-haul airplanes. A 3-year grace period is sufficient for operators to plan for the scribe line inspections, and will allow for timely data collection for use in developing final action and determining whether this AD should be revised in the future. We have not changed the supplemental NPRM regarding this issue. However, operators may request an AMOC in accordance with the procedures in paragraph (m) of this AD.
Boeing requests that we extend the compliance time for certain inspection locations. Boeing reports that recent engineering analysis has revealed slightly reduced stresses in the STA 1283 butt joint. The resulting greater analytical threshold and interval value would allow for longer compliance times to inspect this location on certain airplanes. Boeing therefore requests that we add the following new paragraph as an additional exception to the service bulletin specifications in the proposed AD:
(i) This AD required performing the inspections of the STA 1283 butt joint on Groups 3 and 4 from STR–4.6 to STR–6 per Service Bulletin 747–53A2563 Revision 2, dated January 3, 2008, except allows this location to be treated as Area 2 rather than Area 1 for the initial inspection threshold and allows a LRTS inspection interval of 1500 flight cycles rather than 500.
We agree with the request. However, since the time that Boeing submitted its comments, Boeing released Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, which incorporates the inspection and compliance times described above. Because the inspection and times are included in Revision 4 of this service bulletin and we propose to mandate the requirements contained in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, this inspection is no longer a difference between the service bulletin specification and this supplemental NPRM. We have not changed the supplemental NPRM in this regard.
Boeing requests that we revise the reporting requirement, which is paragraph (i) in the NPRM (now identified as paragraph (j) in this supplemental NPRM), to require operators to also report the maximum scribe depth on each airplane. Boeing states that this pertinent information would allow Boeing to better assess the accuracy of the 747 inspection program, and is necessary for Boeing to re-evaluate the accuracy of the overall scribe analysis methodology.
We agree with the request to revise the reporting requirement. The scribe depths must be determined during the mandated inspections, and this intent was included in the phrase in paragraph (i) of the original NPRM that reads “description of any discrepancies found.” However, we have included additional language to clarify the reporting requirement by specifying that scribe depths are to be included in the required report. Including the depth information with the required report, therefore, would create no additional burden to operators. We have revised paragraph (j) of this supplemental NPRM to clarify this requirement.
BA requests that we limit the data collection. BA questions the need for the reporting requirement specified in
We infer that BA is requesting that we eventually remove the reporting requirement from the AD. We partially agree. We do not agree to remove the reporting requirements from this supplemental NPRM. The original NPRM and this supplemental NPRM clearly note that this AD is considered interim action. Data received from the required reporting will be evaluated to help determine whether further rulemaking will be necessary or whether the inspection requirements can be relaxed. We have not changed the supplemental NPRM in this regard.
KLM notes that Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, provides for some relief for un-inspectable locations, but states that this relief is insufficient for several structural details, and no alternative inspection method is available. The commenter provides no further information.
We infer that KLM is requesting that we delay issuance of the final rule until Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, is revised to provide the structural details. Boeing has released Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, which provides more information regarding inspections. We have revised this supplemental NPRM to refer to Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, as the appropriate source of service information in this supplemental NPRM.
Boeing states that paragraph (j) of the NPRM indicated that operators could receive credit for inspections done before the effective date of the AD according to the Boeing Alert Service Bulletin 747–53A2563, dated March 29, 2007. But, as Boeing notes, operators who inspected using Boeing Alert Service Bulletin 747–53A2563, dated March 29, 2007, would not likely have inspected STA 1283, a new area of inspection added in Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008, and included in the original NPRM. Boeing therefore requests that we revise paragraph (j) of the NPRM (which is now paragraph (l) of the supplemental NPRM) to include the following provisions related to this inspection area:
• Required inspection for scribe damage of the STA 1283 butt joint on Groups 3 and 4 from STR–4.5 to STR–6 in accordance with Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008;
• A compliance time within 1,500 flight cycles after the effective date of this AD or before the threshold cycle limit corresponding to the Area 2 inspection, whichever occurs later; and
• Repair of scribe damage as specified in paragraph (f) of the NPRM (which is now paragraph (g) of the supplemental NPRM).
We agree, for the reasons provided by the commenter. However, since the time that Boeing submitted its comments, it issued Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, which incorporates the inspection and compliance times described above along with other inspections required for airplanes that were previously inspected in accordance with earlier issues of this service bulletin. Because the referenced inspection and times are included in Revision 4 of this service bulletin and we propose to mandate the requirements contained in Revision 4 of this service bulletin, there is no need to state this requirement specifically. Rather, we have added a new paragraph (k) to this supplemental NPRM to require certain actions done in accordance with Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, for airplanes that were previously inspected in accordance with Boeing Alert Service Bulletin 747–53A2563, dated March 29, 2007; Boeing Service Bulletin 747–53A2563, Revision 2, dated January 3, 2008; or Boeing Service Bulletin 747–53A2563, Revision 3, dated June 11, 2009.
BA notes that the Relevant Service Information section of the NPRM describes conditions under which certain inspections would not be required. BA requests that we revise that section to include the following additional exception:
Where the airplane has been delivered without fillet sealed lap joints (
We do not agree with the request. Appendix E of this service bulletin identifies airplanes that had fillet seals installed during production. Several operators subsequently removed the fillet seals, and a listing was needed to ensure that those airplanes delivered with fillet seals would be inspected. In addition, fillet seals might have been applied to lap joints at various times and subsequently removed, and maintenance records might not contain sufficient detail for such an exclusion. We have not changed the supplemental NPRM regarding this issue.
We are proposing this supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
Since issuance of the original NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.
There are about 1,038 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM.
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.
You can find our regulatory evaluation and the estimated costs of compliance 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 September 24, 2010.
(b) None.
(c) This AD applies to Boeing Model 747–100, 747–100B, 747–100B SUD, 747–200B, 747–200C, 747–200F, 747–300, 747–400, 747–400D, 747–400F, 747SP, and 747SR series airplanes, certificated in any category; as identified in Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010.
(d) Air Transport Association (ATA) of America Code 53: Fuselage.
(e) This AD results from reports of scribe lines found at lap joints and butt joints, around external doublers and antennas, and at locations where external decals had been cut. We are issuing this AD to detect and correct scribe lines, which can develop into fatigue cracks in the skin and cause sudden decompression of the airplane.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) At the applicable times specified in Tables 1 through 21 and Table 25 in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, except as provided in paragraph (h) of this AD, do detailed inspections for scribe lines of affected lap and butt splices, wing-to-body fairing locations, and external repair and cutout reinforcement areas, and do all applicable related investigative and corrective actions, by accomplishing all actions specified in the Accomplishment Instructions of Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, except as provided by paragraph (i) of this AD.
The inspection exemptions noted in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, apply to this AD provided that the operator meets the requirements stated in each applicable exemption.
(h) Where Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, specifies a compliance time after the date on that revision or any previous issue of Boeing Service Bulletin 747–53A2563, this AD requires compliance within the specified compliance time after the effective date of this AD. Where Boeing Service Bulletin 747–53A2563 states that airplane flight-cycle time shall be calculated after the “issue date on this service bulletin,” this AD requires the airplane flight-cycle time to be calculated as of the effective date of this AD.
(i) Where Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, specifies to contact Boeing for appropriate action, accomplish applicable actions before further flight using a method approved in accordance with the procedures specified in paragraph (m) of this AD.
(j) At the applicable time specified in paragraph (j)(1) or (j)(2) of this AD: Submit a report of the findings (both positive and negative) of the inspections required by paragraphs (g) and (k) of this AD. Send the report to Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124–2207. The report must contain, at a minimum, the inspection results, a description of any discrepancies including maximum scribe depth, the airplane serial number, and the number of flight cycles and flight hours on the airplane. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
(k) For airplanes that have been inspected before the effective date of this AD in accordance with the service information specified in Table 1 of this AD: At the applicable times specified in Tables 22 through 24 and Tables 26 through 29 of paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, except as provided in paragraph (h) of this AD, do detailed inspections for scribe lines of affected lap splices, butt splices and cargo door lap splices; and do detailed and surface high frequency eddy current or ultrasonic inspections of scribe lines, and do all applicable related investigative and corrective actions, by accomplishing all the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 747–53A2563, Revision 4, dated May 6, 2010, except as provided by paragraph (i) of this AD.
Boeing Alert Service Bulletin 747–53A2563, Revision 1, dated November 8, 2007, was published with omitted information. Actions accomplished according to Boeing Alert Service Bulletin 747–53A2563, Revision 1, dated November 8, 2007, are not considered acceptable for compliance with this AD.
(l) Actions accomplished before the effective date of this AD according to the service information identified in Table 1 of this AD are considered acceptable for compliance with the corresponding actions specified in paragraph (g) of this AD, except as required by paragraph (k) of this AD.
(m)(1) The Manager, Seattle 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: Nicholas Han, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 917–6449; fax (425) 917–6590. Or, e-mail information to
(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.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by the Boeing Commercial Airplanes Organization Designation Authority (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
Federal Aviation Administration (FAA), Department of Transportation (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:
Tail rotor driveshaft hanger bearing bracket part number (P/N) 427–044–223–101 has been found cracked due to fatigue. It has been determined that the fatigue cracking was initiated by a tooling mark left during manufacture.
The existence of tooling marks on the bracket could lead to bracket failure, loss of tail rotor drive and, consequently, loss of control of the helicopter.
We must receive comments on this proposed AD by October 14, 2010.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Sharon Miles, Aerospace Engineer, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone: (817) 222–5122; fax: (817) 222–5961.
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 will post all comments we receive, without change, to
Transport Canada, which is the aviation authority for Canada, has issued AD No. CF–2010–17, dated June 2, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Tail rotor driveshaft hanger bearing bracket part number (P/N) 427–044–223–101 has been found cracked due to fatigue. It has been determined that the fatigue cracking was initiated by a tooling mark left during manufacture.
The existence of tooling marks on the bracket could lead to bracket failure, loss of tail rotor drive and, consequently, loss of control of the helicopter.
Bell Helicopter has issued Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 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 bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
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.
We estimate that this proposed AD will affect 30 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $10,200, or $340 per product.
In addition, we estimate that any necessary follow-on actions would require parts costing $5,034, for a cost of $5,034 per product. We have no way of determining the number of products that may need these actions.
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 October 14, 2010.
(b) None.
(c) This AD applies to Model 427 helicopters, all serial numbers (SNs), certificated in any category.
(d) Air Transport Association of America (ATA) Code 65: Tail Rotor Drive.
(e) The mandatory continuing airworthiness information (MCAI) states:
Tail rotor driveshaft hanger bearing bracket part number (P/N) 427–044–223–101 has been found cracked due to fatigue. It has been determined that the fatigue cracking was initiated by a tooling mark left during manufacture.
The existence of tooling marks on the bracket could lead to bracket failure, loss of tail rotor drive and, consequently, loss of control of the helicopter.
(f) Unless already done, do the following actions:
(1) Applicable to SNs 56001 through 56073, and 56077: Within 30 days after the effective date of this AD, inspect both sides of the hanger bracket, P/N 427–044–223–101, for cracks following Bell Helicopter Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 2009.
(i) If no cracks are found during the inspection required by paragraph (f)(1) of this AD, before further flight rework both sides of the hanger bracket, P/N 427–044–223–101, following Bell Helicopter Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 2009.
(ii) If cracks are found during the inspection required by paragraph (f)(1) of this AD, before further flight replace the hanger bracket, P/N 427–044–223–101, with a new hanger bracket, P/N 427–044–223–101, that has been reworked following Bell Helicopter Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 2009.
(2) Applicable to all SNs: As of the effective date of this AD, you may not install replacement tail rotor driveshaft hanger bracket, P/N 427–044–223–101, unless the bracket has been inspected and found free of cracks and has been reworked following Bell Helicopter Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 2009.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Transport Canada AD No. CF–2010–17, dated June 2, 2010; and Bell Helicopter Alert Service Bulletin No. 427–09–29, REV A, dated November 17, 2009, for related information.
Federal Aviation Administration (FAA), Department of Transportation (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:
It has been determined that new tail rotor disc assembly Part Number (P/N) 101584–1 or –2, sold through Bell Helicopter Spares beginning March 2009, as an alternate to P/N 32721–1, does not conform to the approved configuration. Operating a helicopter with disk assembly P/N 101584–1 or –2 installed may result in loss of control of the helicopter.
We must receive comments on this proposed AD by October 14, 2010.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Sharon Miles, Aerospace Engineer, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone: (817) 222–5122; fax: (817) 222–5961.
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 will post all comments we receive, without change, to
Transport Canada, which is the aviation authority for Canada, has issued AD No. CF–2010–07, dated February 24, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
It has been determined that new tail rotor disc assembly Part Number (P/N) 101584–1 or –2, sold through Bell Helicopter Spares
This directive mandates the removal from service tail rotor disc assembly P/N 101584–1 and –2.
Bell Helicopter has issued Alert Service Bulletin No. 206–09–123, REV A, dated June 10, 2009, and Alert Service Bulletin No. 206L–09–157, REV A, dated June 10, 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 bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
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.
We estimate that this proposed AD will affect 2,847 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $260 per product.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $982,215 or $345 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 October 14, 2010.
(b) None.
(c) This AD applies to the following model and serial number airplanes, certificated in any category.
(d) Air Transport Association of America (ATA) Code 65: Tail Rotor Drive.
(e) The mandatory continuing airworthiness information (MCAI) states:
It has been determined that new tail rotor disc assembly Part Number (P/N) 101584–1 or –2, sold through Bell Helicopter Spares beginning March 2009, as an alternate to P/N 32721–1, does not conform to the approved configuration. Operating a helicopter with disk assembly P/N 101584–1 or –2 installed may result in loss of control of the helicopter.
This directive mandates the removal from service tail rotor disc assembly P/N 101584–1 and –2.
(f) Unless already done, do the following actions following Bell Helicopter Alert Service Bulletin No. 206–09–123, REV A, dated June 10, 2009; and Bell Helicopter Alert Service Bulletin No. 206L–09–157, REV A, dated June 10, 2009, as applicable.
(1) Check the helicopter maintenance records to determine if a disc assembly, part number (P/N) 101584–1 or –2, is installed. Do this check within the next 30 days after the effective date of this AD or within the next 100 hours time-in-service (TIS) after the effective date of this AD, whichever occurs first.
(2) If, during the maintenance records check required in paragraph (f)(1) of this AD,
(3) If, during the maintenance records check required in paragraph (f)(1) of this AD or during the inspection required in paragraph (f)(2) of this AD, you can positively determine that a P/N 101584–1 or –2 disc assembly is not installed, no further action is required. Before further flight, make an entry in the log book showing compliance with this AD.
(4) If, during the maintenance records check required in paragraph (f)(1) of this AD or during the inspection required in paragraph (f)(2) of this AD, you can positively determine that a P/N 101584–1 or –2 disc assembly is installed, within the next 30 days after the effective date of this AD or within the next 100 hours TIS after the effective date of this AD, whichever occurs first, replace disc assembly P/N 101584–1 or –2 with disc assembly P/N 32721–1.
(5) As of the effective date of this AD, do not install disc assembly P/N 101584–1 or –2.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI Transport Canada, AD No. CF–2010–07, dated February 24, 2010; Bell Helicopter Alert Service Bulletin No. 206–09–123, REV A, dated June 10, 2009; and Bell Helicopter Alert Service Bulletin No. 206L–09–157, REV A, dated June 10, 2009, for related information.
Environmental Protection Agency (EPA).
Notice of public hearing.
The EPA is announcing a public hearing to be held for the proposed rule “Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan” which will publish in the near future in the
The public hearing will be held on September 14, 2010.
The September 14, 2010 hearing will be held at the EPA Ariel Rios East building, Room 1153, 1301 Constitution Avenue, Washington, DC 20460. The public hearing will convene at 9 a.m. (Eastern standard time) and continue until the later of 6 p.m. or 1 hour after the last registered speaker has spoken. The EPA will make every effort to accommodate all speakers that arrive and register. A lunch break is scheduled from 12:30 p.m. until 2 p.m. Because this hearing is being held at U.S. government facilities, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons. The EPA Web Site for the rulemaking, which includes the proposal and information about the public hearing, can be found at:
If you would like to present oral testimony at the public hearing, please contact Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Planning Division, (C504–03), Research Triangle Park, NC 27711, telephone (919) 541–0641, fax number (919) 541–5509, e-mail address:
Questions concerning the August 2010 proposed rule should be addressed to Ms. Lisa Sutton, U.S. EPA, Office of Air Quality Planning and Standards, New Source Review Group, (C504–03), Research Triangle Park, NC 27711, telephone number (919) 541–3450, e-mail at
The public hearing is to provide the public an opportunity to present oral comments regarding EPA's proposed “Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan,” which proposes a Federal Implementation Plan to apply in any state that is unable to submit, by its deadline, a corrective State Implementation Plan revision to ensure that the state has authority to issue permits under the Clean Air Act's New Source Review Prevention of Significant Deterioration program for sources of greenhouse gases.
Commenters should notify Ms. Long if they will need specific equipment, or if there are other special needs related to providing comments at the hearing. The EPA will provide equipment for commenters to show overhead slides or make computerized slide presentations if we receive special requests in advance. Oral testimony will be limited to 5 minutes for each commenter. The EPA encourages commenters to provide EPA with a copy of their oral testimony electronically (via e-mail or CD) or in hard copy form.
The hearing schedule, including lists of speakers, will be posted on EPA's Web Site
EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule.
The EPA has established a docket for the proposed rule “Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan” under Docket ID No. EPA–HQ–OAR–2010–0107 (available at
As stated previously, the proposed rule will publish in the near future in the
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule with request for comments.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a policy memorandum of the Undersecretary of Defense for Acquisition, Technology, and Logistics dated February 6, 2007, that required definition of the requirements to track warranties for items subject to Item Unique Identification in the Item Unique Identification registry. This proposed rule stresses that the enforcement of warranties is essential to the effectiveness and efficiency of DoD's material readiness.
Comments on this proposed rule should be submitted in writing to the address shown below on or before October 29, 2010, to be considered in the formation of the final rule.
You may submit comments, identified by DFARS Case 2009–D018, using any of the following methods:
Comments received generally will be posted without change to
Mr. Julian E. Thrash, 703–602–0310.
The Undersecretary of Defense for Acquisition, Technology, and Logistics issued a policy memorandum dated February 6, 2007, that instructed the Director, Defense Procurement and Acquisition Policy, to define the requirements to track warranties for items subject to Item Unique Identification (IUID) in the IUID registry. This proposed rule addresses the requirement to more effectively track warranties for IUID items.
The tracking of warranties, from the identification of the requirement to the expiration date of the warranted item, will enhance significantly the ability of DoD to take full advantage of warranties when they are part of an acquisition. Presently, DoD lacks the enterprise capability that would provide visibility and accountability of warranty data associated with acquired goods. The capability to track warranties will result in—
(a) Reduced costs;
(b) Ability to recognize benefits included for free;
(c) Ability to compare performance against Government specified warranties;
(d) Increased level of insurance for purchased goods;
(e) Sufficient durations of warranties for specific goods;
(f) Ability to identify and enforce warranties (
DoD proposes the following changes:
• Revise DFARS 211.274–2(a)(4), Policy for unique item identification, to add any warranted item.
• Revise the definitions of “acceptance” and “defect,” and add a definition for “warranty tracking” at DFARS 246.701.
• Add DFARS 246.710(5) to include provision and clause prescriptions 252.246–70XX and 252.246–70YY.
• Revise DFARS 252.211–7003, Item Identification and Valuation, definition of “issuing agency.”
• Add provision 252.246–70XX, Notice of Warranty Tracking of Serialized Items.
• Add clause 252.246–70YY, Warranty Tracking of Serialized Items.
This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 20, 1993. This is not a major rule under 5 U.S.C. 804.
DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603
(a) Reduced costs;
(b) Ability to recognize benefits included for free;
(c) Ability to compare performance against Government specified warranties;
(d) Sufficient durations of warranties for specific goods.
DoD will address the requirement to track warranties with the following DFARS provision and clause:
(1) 252.246–70XX, Notice of Warranty Tracking of Serialized Items;
(2) 252.246–70YY, Warranty Tracking of Serialized Items.
In FY 2009, DoD issued approximately 16,000 solicitations that use warranty clauses. In response to those solicitations, approximately 76,000 offers would be received (66,000 from small business, 10,000 from other than small business). Of that total, DoD estimates that 50% of the time the Government will provide the required warranty information for 38,000 offers (33,000 small and 5,000 other than small businesses). Therefore, 33,000 small entities would be impacted by the rule.
DoD invites comments from small concerns and other interested parties on the impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS case 2009–D018), in correspondence.
The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because the proposed rule does contain information collection requirements. DoD invites comments on the following aspects of the proposed rule: (a) Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The following is a summary of the information collection requirement.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations System, Attn: Mr. Julian E. Thrash, OUSD(AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Mr. Julian E. Thrash, OUSD(AT&L) DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060.
Government procurement.
Therefore, DoD proposes to amend 48 CFR parts 211, 246, and 252 as follows:
1. The authority citation for 48 CFR parts 211, 246, and 252 continues to read as follows:
41 U.S.C. 421 and 48 CFR chapter 1.
2. Amend section 211.274–2 by revising paragraphs (a)(4)(i) and (a)(4)(ii) and by adding paragraph (a)(4)(iii) as follows:
(a) * * *
(4) * * *
(i) Any DoD serially managed subassembly, component, or part embedded within a delivered item;
(ii) The parent item (as defined in 252.211–7003(a)) that contains the embedded subassembly, component, or part; and
(iii) Any warranted item.
3. Revise section 246.701 to read as follows:
As used in this subpart—
4. Amend section 246.710 by revising the section heading and adding paragraph (5) to read as follows:
(5)(i) In addition to 252.211–7003, Item Unique Valuation, which is prescribed in 211.274–5(a), use the following provision and clause in solicitations and contracts when it is anticipated that the resulting contract will include a warranty for serialized items:
(A) 252.246–70XX, Notice of Warranty Tracking of Serialized Items (include only if offerors will be required to enter data with the offer); and
(B) 252.246–70YY, Warranty Tracking of Serialized Items.
(ii) If the Government specifies a warranty, then the contracting officer shall request the requiring activity to
(iii) If the Government does not specify a warranty, include 252.246–70XX in the solicitation. The contractor may offer a warranty and shall then populate Table I in the clause 252.246–70YY, as appropriate, as part of its offer as required by 252.246–70XX.
(iv) All warranty tracking information that is indicated with a single asterisk (*) in Table I in the clause 252.246–70YY shall be completed prior to award. Data indicated with two asterisks (**) may be completed on or after the time of award, but no later than the time of delivery.
(v) The contractor shall provide warranty repair source instructions (Table II in the clause 252.246–70YY) no later than the time of delivery.
5. Amend section 252.211–7003 by revising the clause date to read “(XXX 2010)” and, at paragraph (a), by revising the definition of “issuing agency” to read as follows:
(a) * * *
6. Add section 252.246–70XX to read as follows:
As prescribed in 246.710(5)(i)(A), use the following provision:
(a)
(b)
7. Add section 252.246–70YY to read as follows:
(a)
(b)
Notes:
(a) Item type—
C—component procured separate from end item
S—subassembly procured separate from end item or subassembly
E—embedded in component, subassembly or end item parent
P—parent end item
(b) Starting event—
Acceptance (A)
Installation (I)
First use (F)
Other (O)
Warranty term—Choose one of the following:
(c) Usage (for warrantees where effectivity is in terms of operating time or cycles)
(d) Duration (for warrantees that expire after a set period of time)
(e) Date (for warrantees with a fixed expiration date)
(f) Warranty administrator enterprise identifier code type—
0–9—GS1 Company Prefix
D—CAGE
LB—ATIS–0322000
LH—EHIBCC
RH—HIBCC
UN—DUNS
(g) Warranty administrator enterprise identifier—A non-repeatable identifier code assigned to an enterprise by an issuing agency [
(h) Warranty guarantor enterprise identifier code type—
0–9—GS1 Company Prefix
D—CAGE
LB—ATIS–0322000
LH—EHIBCC
RH—HIBCC
UN—DUNS
(j) Warranty repair source enterprise identifier code type—
0–9—GS1 Company Prefix
D—CAGE
LB—ATIS–0322000
LH—EHIBCC
RH—HIBCC
UN—DUNS
(k) Warranty repair source enterprise identifier—A non-repeatable identifier code assigned to an enterprise by an issuing agency [
(c)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This proposed rule would continue a moratorium on fishing for bottomfish and seamount groundfish at the Hancock Seamounts until the overfished U.S. stock of pelagic armorhead (
Comments on the amendment must be received by October 14, 2010.
Comments on the proposed rule, identified by 0648–AY92, may be sent to either of the following addresses:
• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal
• Mail: Mail written comments to Michael D. Tosatto, Acting Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814–4700.
Instructions: Comments must be submitted to one of these two addresses to ensure that the comments are received, documented, and considered by NMFS. Comments sent to any other address or individual, or received after the end of the comment period, may not be considered. Comments will be posted for public viewing after thecomment period has closed. All comments received are a part of the public record and will generally be posted to
Amendment 2 to the Fishery Ecosystem Plan for the Hawaiian Archipelago contains an environmental assessment and background information, and is available from
Jarad Makaiau, NMFS PIR Sustainable Fisheries, 808–944–2108.
This document is also available at
Fishing for pelagic armorhead is managed under the Fishery Ecosystem Plan for the Hawaiian Archipelago (FEP). Armorhead are overfished as a result of over-exploitation by foreign vessels in international waters, dating back to at least the 1970s. Although there has never been a U.S. fishery targeting this fish, continued exploitation outside the U.S. Exclusive Economic Zone (EEZ) by foreign fleets has kept the stock in an overfished condition.
The Hancock Seamounts are the only known armorhead habitat within the EEZ. These seamounts lie west of 180° W. and north of 28° N., to the northwest of Kure Atoll in the Northwestern Hawaiian Islands. The Council and NMFS have responded to the overfished condition of armorhead with a series of four, 6–year domestic fishing moratoria at the Hancock Seamounts, beginning in 1986. The current 6–year moratorium expires on August 31, 2010. Although there would be a short time period between the expiration of the current moratorium and implementation of this rule, if approved, the likelihood of a new Hawaii-based domestic armorhead fishery developing is discountable. The Hancock Seamounts are a relatively small and isolated fishing area, and the costs of starting up fishing operations to enter this fishery would be prohibitive relative to the potential fishing yield during the very short time that the area would be open. Additionally, existing domestic North Pacific trawl vessels would not be allowed to fish at Hancock Seamounts because trawls are prohibited fishing gear in the U.S. Pacific Islands.
From July 2009 to August 2010, the Council developed Amendment 2 to the Hawaii FEP to rebuild the armorhead stock pursuant to the Magnuson-Stevens Act; the amendment is currently undergoing Secretarial review (75 FR 51237, August 19, 2010). The Council recommended in Amendment 2 that NMFS establish a minimum rebuilding time of 35 years for the U.S. portion of the armorhead stock. The Council also recommended that NMFS classify the portion of the EEZ surrounding the Hancock Seamounts as an ecosystem management area, and extend the moratorium at Hancock Seamounts until the stock is rebuilt. In response to these recommendations, NMFS developed this proposed rule to implement the latter two recommendations.
The Council and NMFS recognize that, because less than five percent of the armorhead habitat lies within U.S. jurisdiction, rebuilding of the stock must be accomplished through coordinated international management. Nonetheless, a prohibition on all armorhead catches in U.S. waters would provide the maximum protection available for armorhead stocks in U.S. waters.
The current moratorium applies to all bottomfish and seamount groundfish, and the proposed moratorium would continue to do so. While only armorhead are overfished, other bottomfish and seamount groundfish are caught with the same gear type as armorhead. Opening the Hancock Seamount fishery to non-armorhead fish would increase the likelihood of incidental catches of armorhead, resulting in possible delays to rebuilding the stock. In addition, the fishing gear (anchors, weighted lines, and hooks) used to target non-armorhead fish, or lost on fishing
NMFS anticipates that further research will be necessary for the Regional Administrator to determine when armorhead stocks are rebuilt and could support a domestic fishery. Specifically, research must be conducted to obtain better information about armorhead life history, ecological information such as food-web dynamics and essential fish habitat, population dynamics, and fishery-independent information at the population level. Additionally, the Council has identified the need for habitat mapping and characterization, and fish distribution and abundance by habitat types. This information is necessary to determine whether the status of the stock could support a domestic fishery at Hancock Seamounts in the future.
Classifying the portion of the EEZ around the Hancock Seamounts as an ecosystem management area would acknowledge the significance of the area as a monitoring and research site for ecological studies on armorhead and other bottomfish and seamount groundfish and their associated benthic habitats. The ecosystem management area would also serve as the area in which the maximum U.S. contribution to rebuilding of the armorhead stock would occur. Hancock Seamounts could also serve as a control site for future research that assesses the effectiveness of management actions being considered by other nations and regional fishery management organizations, such as seasonal closures and bank-specific closures in international waters adjacent to Hancock Seamounts.
Additional information and analyses may be found in Amendment 2, available from the Council (see
To be considered, comments on this proposed rule must be received by October 14, 2010, not postmarked or otherwise transmitted by that date.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the fishery ecosystem plan for Hawaii, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The analysis follows:
Pelagic armorhead (
The Council developed Amendment 2 to the Hawaii fishery ecosystem plan to establish rebuilding requirements pursuant to Magnuson-Stevens Act section 304(e)(4). Amendment 2 would: (1) continue a moratorium on fishing for armorhead and other bottomfish and seamount groundfish until the armorhead stock is rebuilt; (2) establish a minimum rebuilding time of 35 years for the U.S. portion of the armorhead stock; and (3) classify the portion of the EEZ around the Hancock Seamounts as an ecosystem management area.
The fishing moratorium continues to apply to all bottomfish and seamount groundfish. While only armorhead are overfished, other bottomfish and seamount groundfish are caught with the same gear type as armorhead. Thus, opening the fishery to non-armorhead fish increases the likelihood of incidental catches of armorhead, resulting in possible delays to rebuilding the stock. In addition, the fishing gear (anchors, weighted lines, and hooks) used to target non-armorhead fish, or lost on fishing grounds, may impact armorhead essential fish habitat and habitat areas of particular concern. For these reasons, all bottomfish and seamount groundfish have been included in the fishing moratoriums at Hancock Seamounts in the past, and are also included in this action. The intent of the continued moratorium and minimum rebuilding time is to facilitate rebuilding of the armorhead stock, and the intent of the ecosystem management area is to facilitate research on armorhead and other seamount groundfish. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule.
This proposed rule does not duplicate, overlap, or conflict with other Federal rules. All fishing vessels having the potential to participate in this fishery are considered to be small entities under the current Small Business Administration definition of small fish-harvesting businesses (gross receipts not in excess of $ 4.0 million). There are no additional small entities that could be affected by this proposed rulemaking.
There has never been any U.S. fishery at Hancock Seamounts, nor has there been any recent interest in starting one, so this proposed rule would not affect the profitability of fishing businesses under Federal management. Therefore, there are no disproportionate economic impacts from this proposed rule based on home port, gear type, or relative vessel size. For these reasons, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small entities, based on the pre-existing status of U.S. fishery for armorhead and other bottomfish and seamount groundfish at Hancock Seamounts.
As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
Armorhead, Bottomfish, Fisheries, Fishing, Hancock Seamounts, Hawaii, Seamount groundfish.
For the reasons set out in the preamble, 50 CFR part 665 is proposed to be amended as follows:
1. The authority citation for part 665 continues to read as follows:
16 U.S.C. 1801
2. In § 665.202, revise paragraph (a)(3) to read as follows:
(3) Hancock Seamounts Ecosystem Management Area means that portion of the EEZ in the Northwestern Hawaiian Islands west of 180° W. long. and north of 28° N. lat.
3. In § 665.204, add new paragraph (k) to read as follows:
(k) Fish for or possess any Hawaii bottomfish or seamount groundfish MUS in the Hancock Seamounts Ecosystem Management Area, in violation of § 665.209.
4. Revise § 665.209 to read as follows:
Fishing for, and possession of, Hawaii bottomfish and seamount groundfish MUS in the Hancock Seamounts Ecosystem Management Area is prohibited until the Regional Administrator determines that the armorhead stock is rebuilt.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
GIPSA is announcing the designation of the following organizations to provide official services under the United States Grain Standards Act, as amended (USGSA): Amarillo Grain Exchange, Inc. (Amarillo); Cairo Grain Inspection Agency, Inc. (Cairo); Louisiana Department of Agriculture and Forestry (Louisiana); North Carolina Department of Agriculture (North Carolina); and D. R. Schaal Agency, Inc. (Schaal).
Karen W. Guagliardo, Branch Chief, Review Branch, Compliance Division, GIPSA, USDA, STOP 3604, Room 1647–S, 1400 Independence Avenue, SW., Washington, DC 20250–3604.
Karen W. Guagliardo, 202–720–8262 or
In the March 31, 2010,
Amarillo, Cairo, Louisiana, North Carolina, and Schaal were the sole applicants for designations to provide official services in these areas. As a result, GIPSA did not ask for additional comments.
GIPSA evaluated all available information regarding the designation criteria in section 7(f)(l) of the USGSA (7 U.S.C. 79(f)) and determined that Amarillo, Cairo, Louisiana, North Carolina, and Schaal are qualified to provide official services in the geographic areas specified in the March 31, 2010, and June 25, 2010,
Interested persons may obtain official services by calling the telephone numbers listed below:
Section 7(f)(1) of the USGSA authorizes GIPSA's Administrator to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79(f)(1)).
Under section 7(g)(1) of the USGSA, designations of official agencies are effective for 3 years unless terminated by the Secretary; however, designations may be renewed according to the criteria and procedures prescribed in section 7(f) of the Act.
7 U.S.C. 71–87k.
Agricultural Research Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Horticultural Research Institute, Inc. of Washington, DC, an exclusive license to U.S. Patent No. 7,066,995, “Compositions and Films Comprised of Avian Feather Keratin,” issued on June 27, 2006.
Comments must be received on or before September 29, 2010.
Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4–1174, Beltsville, Maryland 20705–5131.
June Blalock of the Office of Technology
The Federal Government's patent rights in this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as Horticultural Research Institute, Inc. of Washington, DC has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Forest Service, USDA.
Notice of meeting.
The Alpine County Resource Advisory Committee (RAC) will hold a meeting.
The meeting will be held on September 21st, 2010 and will begin at 6 p.m.
The meeting will be held in Alpine County at the Alpine Early Learning Center, 100 Foothill Road, Markleeville, CA 96120.
Daniel Morris, RAC Coordinator, USDA, Humboldt-Toiyabe National Forest, Carson Ranger District, 1536 S. Carson Street, Carson City, NV 89701 (775) 884–8140; E-mail
Agenda items to be covered include: (1) Review and recommend finding allocation for proposed projects (2) Determine timeframes for the next round of project proposals (3) Public Comment. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
The designations of the official agencies listed below will end on March 31, 2011. We are asking persons or governmental agencies interested in providing official services in the areas presently served by these agencies to submit an application for designation. In addition, we are asking for comments on the quality of services provided by the following designated agencies: J. W. Barton Grain Inspection Service, Inc. (Barton); Central Illinois Grain Inspection, Inc. (Central Illinois); Central Iowa Grain Inspection Service, Inc. (Central Iowa); Farwell Commodity and Grain Services, Inc. (Farwell Southwest); North Dakota Grain Inspection Service, Inc. (North Dakota); Northern Plains Grain Inspection Service, Inc. (Northern Plains); and Plainview Grain Inspection and Weighing Service, Inc. (Plainview).
Applications and comments are due by September 29, 2010.
Submit applications concerning this notice using only one of the following methods:
•
•
•
Karen W. Guagliardo, 202–720–7312 or
Section 7(f)(1) of the United States Grain Standards Act (USGSA) (7 U.S.C. 71–87k) authorizes GIPSA's Administrator to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services. Under section 7(g)(1) of the USGSA, designations of official agencies are effective for 3 years unless terminated by the Secretary, but may be renewed according to the criteria and procedures prescribed in section 7(f) of the Act.
Pursuant to Section 7(f)(2) of the Act, the following geographic areas, in the States of Indiana, Kentucky, and Tennessee are assigned to this official agency:
In Indiana:
• Clark, Crawford, Floyd, Harrison, Jackson, Jennings, Jefferson, Lawrence, Martin, Orange, Perry, Scott, Spencer, and Washington Counties.
In Kentucky:
• Bounded on the North by the northern Daviess, Hancock, Breckinridge, Meade, Hardin, Jefferson, Oldham, Trimble, and Carroll County lines;
• Bounded on the East by the eastern Carroll, Henry, Franklin, Scott, Fayette, Jessamine, Woodford, Anderson, Nelson, Larue, Hart, Barren, and Allen County lines;
• Bounded on the South by the southern Allen and Simpson County lines; and
• Bounded on the West by the western Simpson and Warren County lines; the southern Butler and Muhlenberg County lines; the Muhlenberg County line west to the Western Kentucky Parkway; the Western Kentucky Parkway west to State Route 109; State Route 109 north to State Route 814; State Route 814 north to U.S. Route Alternate 41; U.S. Route Alternate 41 north to the Webster County line; the northern Webster County line; the western McLean and Daviess County lines.
In Tennessee:
• Bounded on the North by the northern Tennessee State line from Sumner County east;
• Bounded on the East by the eastern Tennessee State line southwest;
• Bounded on the South by the southern Tennessee State line west to the western Giles County line; and
• Bounded on the West by the western Giles, Maury, and Williamson County lines North; the northern Williamson County line east; the western Rutherford, Wilson, and Sumner County lines north.
Pursuant to Section 7(f)(2) of the Act, the following geographic area, in the State of Illinois, is assigned to this official agency:
• Bounded on the North by State Route 18 east to U.S. Route 51; U.S. Route 51 south to State Route 17; State Route 17 east to Livingston County; the Livingston County line east to State Route 47;
• Bounded on the East by State Route 47 south to State Route 116; State Route 116 west to Pontiac, which intersects with a straight line running north and south through Arrowsmith to the southern McLean County line;
• Bounded on the South by the southern McLean County line; the eastern Logan County line south to State Route 10; State Route 10 west to the Logan County line; the western Logan County line; the southern Tazewell County line; and
• Bounded on the West by the western Tazewell County line; the western Peoria County line north to Interstate 74; Interstate 74 southeast to State Route 116; State Route 116 north to State Route 26; State Route 26 north to State Route 18.
Central Illinois' assigned geographic area does not include the East Lincoln Farmers Grain Co. (Lincoln, Logan County, Illinois) grain elevator, which is located inside Central Illinois' area. Springfield Grain Inspection, Inc. presently services and will continue to service this elevator.
Pursuant to Section 7(f)(2) of the Act, the following geographic area, in the State of Iowa, is assigned to this official agency:
• Bounded on the North by U.S. Route 30 east to N44; N44 south to E53; E53 east to U.S. Route 30; U.S. Route 30 east to the Boone County line; the western Boone County line north to E18; E18 east to U.S. Route 169; U.S. Route 169 north to the Boone County line; the northern Boone County line; the western Hamilton County line north to U.S. Route 20; U.S. Route 20 east to R38; R38 north to the Hamilton County line; the northern Hamilton County line east to Interstate 35; Interstate 35 northeast to C55; C55 east to S41; S41 north to State Route 3; State Route 3 east to U.S. Route 65; U.S. Route 65 north to C25; C25 east to S56; S56 north to C23; C23 east to T47; T47 south to C33; C33 east to T64; T64 north to B60; B60 east to U.S. Route 218; U.S. Route 218 north to Chickasaw County; the western Chickasaw County line; and the western and northern Howard County lines.
• Bounded on the East by the eastern Howard and Chickasaw County lines; the eastern and southern Bremer County lines; V49 south to State Route 297; State Route 297 south to D38; D38 west to State Route 21; State Route 21 south to State Route 8; State Route 8 west to U.S. Route 63; U.S. Route 63 south to Interstate 80; Interstate 80 east to the Poweshiek County line; the eastern Poweshiek, Mahaska, Monroe, and Appanoose County lines;
• Bounded on the South by the southern Appanoose, Wayne, Decatur, Ringgold, and Taylor County lines;
• Bounded on the West by the western Taylor County line; the southern Montgomery County line west to State Route 48; State Route 48 north to M47; M47 north to the Montgomery County line; the northern Montgomery County line; the western Cass and Audubon County lines; the northern Audubon County line east to U.S. Route 71; U.S. Route 71 north to U.S. Route 30.
The following grain elevators, located outside of the above contiguous geographic area, are part of this geographic area assignment: AgVantage FS, Chapin, Franklin County; and Five Star Coop, Rockwell, Cerro Gordo County (located inside D.R. Schaal Agency's area).
Central Iowa's assigned geographic area does not include the following grain elevators, which are located inside Central Iowa's area:
• West Central Coop in Boxholm, Boone County, Iowa (serviced by Sioux City Inspection and Weighing Service Company) and
• Hancock Elevator in Elliot, Montgomery County, Iowa and two Hancock elevators in Griswold, Cass County, Iowa (serviced by Omaha Grain Inspection Service, Inc.).
Pursuant to Section 7(f)(2) of the Act, the following geographic areas, in the States of Arizona and California, except those export port locations within these areas, which are serviced by GIPSA, are assigned to this official agency:
• Maricopa, Pinal, Santa Cruz, and Yuma Counties, Arizona.
• Imperial, Riverside, and San Diego Counties, California.
Pursuant to Section 7(f)(2) of the Act, the following geographic areas, in the States of Illinois, Minnesota and North Dakota, are assigned to this official agency:
In Illinois:
• Bounded on the East by the eastern Cumberland County line; the eastern Jasper County line south to State Route 33; State Route 33 east-southeast to the Indiana-Illinois State line; the Indiana-Illinois State line south to the southern Gallatin County line;
• Bounded on the South by the southern Gallatin, Saline, and Williamson County lines; the southern Jackson County line west to U.S. Route 51; U.S. Route 51 north to State Route 13; State Route 13 northwest to State Route 149; State Route 149 west to State Route 3; State Route 3 northwest to State Route 51; State Route 51 south to the Mississippi River;
• Bounded on the West by the Mississippi River north to the northern Calhoun County line; and
• Bounded on the North by the northern and eastern Calhoun County lines; the northern and eastern Jersey County lines; the northern Madison County line; the western Montgomery County line north to a point on this line that intersects with a straight line, from the junction of State Route 111 and the northern Macoupin County line to the junction of Interstate 55 and State Route 16 (in Montgomery County); from this point southeast along the straight line to the junction of Interstate 55 and State Route 16; State Route 16 east-northeast to a point approximately 1 mile northeast of Irving; a straight line from this point to the northern Fayette County line; the northern Fayette, Effingham, and Cumberland County lines.
In Minnesota:
• Koochiching, St. Louis, Lake, Cook, Itasca, Norman, Mahnomen, Hubbard, Cass, Clay, Becker, Wadena, Crow Wing, Aitkin, Carlton, Wilkin, and Otter Tail Counties, excluding those export port locations served by GIPSA.
In North Dakota:
• Bounded on the North by the northern Steele County line from State Route 32 east; the northern Steele and Traill County lines east to the North Dakota State line;
• Bounded on the East by the eastern North Dakota State line;
• Bounded on the South by the southern North Dakota State line west to State Route 1; and
• Bounded on the West by State Route 1 north to Interstate 94; Interstate 94 east to the Soo Railroad line; the Soo Railroad line northwest to State Route 1; State Route 1 north to State Route 200; State Route 200 east to State Route 45; State Route 45 north to State Route 32; State Route 32 north.
Pursuant to Section 7(f)(2) of the Act, the following geographic areas, in the States of Minnesota and North Dakota, are assigned to this official agency:
In Minnesota:
• Kittson, Roseau, Lake of the Woods, Marshall, Beltrami, Polk, Pennington, Red Lake, and Clearwater Counties.
In North Dakota:
• Bounded on the North by the North Dakota State line;
• Bounded on the East by the North Dakota State line south to the southern Grand Forks County line;
• Bounded on the South by the southern Grand Forks and Nelson County lines west to the western Nelson County line; the western Nelson County line north to the southern Benson County line, the southern Benson and Pierce County lines west to State Route 3; and
• Bounded on the West by State Route 3 north to the southern Rolette County line; the southern Rolette County line west to the western Rolette County line north to the North Dakota State line.
Pursuant to Section 7(f)(2) of the Act, the following geographic areas, in the State of Texas, are assigned to this official agency.
• Bounded on the North by the northern Deaf Smith County line east to U.S. Route 385; U.S. Route 385 south to FM 1062; FM 1062 east to State Route 217; State Route 217 east to Prairie Dog Town Fork of the Red River; Prairie Dog Town Fork of the Red River southeast to the northern Briscoe County line and along the northern Hall County line east to U.S. Route 287; U.S. Route 287 southeast to the eastern Hall County line south to the northern Cottle County line; the northern Cottle County line east to the northern Hardeman County line;
• Bounded on the East by the eastern Hardeman and Fourd County lines to the northern Baylor and Archer County lines to the eastern Archer, Throckmorton, Shackelford, and Callahan County lines;
• Bounded on the South by the southern Callahan, Taylor, Nolan, Mitchell, Howard, Martin, and Andrews County lines; and
• Bounded on the West by the western Andrews, Gaines, and Yoakum County lines; the northern Yoakum and Terry county lines; the western Lubbock County line; the western Hale County line north to FM 37; FM 37 west to U.S. Route 84; U.S. Route 84 northwest to FM 303; FM 303 north to U.S. Route 70; U.S. Route 70 west to the Lamb County line; the western and northern Lamb County lines; the western Castro County line; the southern Deaf Smith County line west to State Route 214; State Route 214 north to the northern Deaf Smith County line.
Interested persons or governmental agencies may apply for designation to provide official services in the geographic areas specified above under the provisions of section 7(f) of the USGSA and 7 CFR 800.196(d). Designation in the specified geographic areas is for the period beginning April 1, 2011, and ending March 31, 2014. To apply for designation or for more information, contact Karen W. Guagliardo at the address listed above or visit GIPSA's Web site at
We are publishing this notice to provide interested persons the opportunity to comment on the quality of services provided by the Barton, Central Illinois, Central Iowa, Farwell Southwest, North Dakota, Northern Plains, and Plainview official agencies. In the designation process, we are particularly interested in receiving comments citing reasons and pertinent data supporting or objecting to the designation of the applicants. Submit all comments to Karen W. Guagliardo at the above address or at
We consider applications, comments, and other available information when determining which applicant will be designated.
7 U.S.C. 71–87k.
United States Commission on Civil Rights.
Notice of meeting cancellation.
On August 19, 2010 (75 FR 51238–51239), the U.S. Commission on Civil Rights announced a business meeting to be held on Friday, August 27, 2010 via teleconference. On Wednesday, August 25, 2010, the meeting was cancelled. The decision to cancel the meeting was too close in time to the date and time of the meeting for the publication of a cancellation notice to appear in advance of the scheduled meeting date. The details of the cancelled meeting are:
Friday, August 27, 2010; 11:30 a.m. EDT.
Via Teleconference.
Public Dial In: 1–800–597–7623.
Conference ID # 94458880.
This meeting is open to the public, except where noted otherwise.
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376–8591. TDD: (202) 376–8116.
Persons with a disability requiring special services, such as an interpreter for the hearing impaired, should contact Pamela Dunston at least seven days prior to the meeting at 202–376–8105. TDD: (202) 376–8116.
Based on a request from Dow Corning Corporation (Dow Corning), the rebuttal period on the preliminary recommendation for the application for
For further information, contact Elizabeth Whiteman at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of 90–day petition finding.
We (NMFS) received a petition to list Georgia Basin populations of China rockfish (
Requests for copies of this petition regarding Georgia Basin China rockfish and tiger rockfish should be submitted to Chief, Protected Resources Division, NMFS, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. The petition and supporting data are available for public inspection, by appointment, Monday through Friday, at this address.
Garth Griffin, NMFS, Northwest Region, (503) 231–2005 or Dwayne Meadows, NMFS, Office of Protected Resources, (301) 713–1401.
Section 4 of the ESA contains provisions allowing interested persons to petition the Secretary of the Interior or the Secretary of Commerce (Secretary) to add a species to or remove a species from the List of Endangered and Threatened Wildlife and to designate critical habitat. On April 27, 2010, we received a petition from Mr. Sam Wright of Olympia, WA, to list Georgia Basin populations of China rockfish and tiger rockfish. For the purpose of this petition finding, we consider the Georgia Basin to include the inland marine waters of Puget Sound, the Strait of Georgia (north to the mouth of the Campbell River in British Columbia), and the portion of the Strait of Juan de Fuca east of the Victoria Sill (see our determination to list three distinct population segments of Puget Sound/Georgia Basin distinct population segments of rockfish, 75 FR 22276 (April 28, 2010)).
Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531–1544) requires that we determine whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. In making this determination, we consider information submitted with and referenced in the petition, and all other information available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the
In evaluating a petition, the Secretary considers whether it (1) describes past and present numbers and distribution of the species and any threats faced by the species (50 CFR 424.14(b)(2)(ii)); (2) provides information regarding the status of the species over all or a significant portion of its range (50 CFR 424.14(b)(2)(iii)); and (3) is accompanied by appropriate supporting documentation (50 CFR 424.14(b)(2)(iv)).
The ESA defines “species” to include subspecies, or a distinct population segment of a vertebrate species (16 U.S.C. 1532(16)). The petitioner requested listing of the Georgia Basin populations of China rockfish and tiger rockfish. We evaluated whether the information provided or cited in the petition met our standard for “substantial information” as defined in joint ESA implementing regulations issued by NMFS and the U.S. Fish and Wildlife Service (50 CFR 424.14(b)). We also reviewed other information
We have received numerous petitions from Mr. Wright. In 1999, he petitioned us to list 18 species of Puget Sound marine fishes. Based on the information presented in that petition, and available in our files, we conducted status reviews on seven of those fishes. Information on the other eleven fishes (including China rockfish and tiger rockfish) was insubstantial and we therefore did not conduct status reviews (64 FR 33037; June 21, 1999).
When reviewing a petition to list a species under the ESA, we consider information provided in the petition as well as information available in agency files. Mr. Wright's petition provides information from SCUBA surveys conducted in the Georgia Basin from 1998 to 2009. The petition points to the fact that there are few observations of China rockfish and tiger rockfish in these surveys. The petition provides no analysis to explain how these surveys can be interpreted to indicate either a low abundance level or a declining trend in abundance, either of which might be evidence of risk to the species. To the contrary, the petitioner acknowledges that adults of these two species tend to remain hidden in rocky habitats, which could make them difficult for SCUBA divers to observe.
In the absence of any analysis in the petition, we independently reviewed the information from these surveys and concluded they do not provide evidence of low abundance or a declining trend in abundance. The surveys are opportunistic sightings, reported by recreational or professional divers. There is no research protocol associated with these SCUBA reports, and the identification of individual fish species cannot be independently verified. Because the area surveyed and the level of effort are opportunistic and variable, because the reports are not collected in a systematic sampling design, and because adults of these species tend to hide in rocky habitats that could make them difficult to observe, we concluded that these survey results do not support inferences about population abundance.
The petition also provides a short description of the total recreational catch of these species over a 12–year period. The description appears under a heading in the petition entitled “Low Abundance Problem,” but the petition provides no explanation of how this information reveals anything about the abundance of these two species. In the absence of an analysis in the petition, we independently reviewed the information on recreational catches of these two species available in our records. The proportion of these two species in the recreational rockfish catch is low, approximately 1 percent over the 12–year period. Standing alone, however, this low percentage does not indicate a low occurrence of these rockfish species relative to others because, as noted above, adults of the petitioned species tend to remain hidden in rocky habitat and are therefore less available to anglers. Nor does this information reveal anything about the absolute abundance of these two species. The catch information therefore does not indicate that abundance of these species is low enough to pose a threat to viability.
We agree with the petitioner's assertion that China rockfish and tiger rockfish typically utilize a small home range and experience low productivity. However, as the petitioner acknowledges, a small home range causes individuals to remain hidden in rocky habitat, where they may experience lower mortality, as a result of less frequent exposure to predators. Low productivity can be a risk factor in some instances. However, low productivity is not an indication of declining abundance (another risk factor) since it reflects a life history trade-off between fecundity and life span.
Finally, the petitioner fails to demonstrate how any of these individual pieces of information could be integrated into a trend analysis or some other type of analysis suggesting the two species are at risk.
The petitioner states “This would be an ideal time to conduct a status review of these two species since most of the required assessment work has already been done and there is an existing Biological Review Team (BRT).” While it is true that NMFS recently completed an ESA review of five rockfish species in the Puget Sound/Strait of Georgia (including the formation and use of a BRT), that is not a basis to conduct additional reviews under ESA section 4(b)(3)(A). NMFS did not look at information on China rockfish and tiger rockfish during its review earlier in the year, and the BRT was subsequently disbanded.
After reviewing the petition, as well as information readily available to us, we have determined that the petition does not present substantial scientific information indicating the petitioned action may be warranted. If new information becomes available to suggest that Georgia Basin populations of China rockfish and tiger rockfish may warrant listing under the ESA, we will reconsider conducting a status review.
A complete list of all references cited herein is available upon request (see ADDRESSES section).
16 U.S.C. 1531
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The President's Export Council will hold a meeting to discuss topics related to the National Export Initiative, and advice from the President's Export Council as to how to promote U.S. exports, jobs, and growth.
September 16, 2010 at 9:30 a.m. (EDT).
The President's Export Council will convene its next meeting via live webcast on the Internet at
J. Marc Chittum, President's Export Council, Room 4043, 1401 Constitution Avenue, NW., Washington, DC 20230, telephone: 202–482–1124, e-mail:
Send electronic statements to the President's Export Council Web site at
Send paper statements to J. Marc Chittum, President's Export Council, Room 4043, 1401 Constitution Avenue, NW., Washington, DC 20230. All statements will be posted on the President's Export Council Web site (
Import Administration, International Trade Administration, Department of Commerce.
Pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216 and 351.221(c)(3), the Department of Commerce (the Department) is conducting a changed-circumstances review of the antidumping duty order on carbazole violet pigment 23 from India to determine whether Meghmani Pigments (Meghmani) is the successor-in-interest to Alpanil Industries (Alpanil) for determining antidumping duty liability. Because Meghmani did not respond to the Department's questionnaire, we have preliminarily determined that the use of facts available is appropriate to find that Meghmani is the successor-in-interest to Alpanil. Interested parties are invited to comment on these preliminary results.
Jerrold Freeman or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On December 11, 2009, the Department was notified by Alpanil that, on April 9, 2009, Alpanil's name was officially changed to Meghmani Pigments. In addition to a brief narrative explaining that there was no change in company ownership, management, production, office or factory location, employees, customers, or suppliers, a copy of “Form G” from the Gujurat State Registar of Firms was attached to demonstrate a record of all corporate changes for Alpanil/Meghmani since the incorporation of Alpanil in 1992. This attachment indicates that Alpanil's name change to Meghmani was recorded on April 9, 2009.
On March 9, 2010, in accordance with section 751(b) of the Act, 19 CFR 351.216, and 19 CFR 351.221(c)(3), we published in the
On April 5, 2010, Meghmani withdrew its request for a review of its sales of merchandise subject to the antidumping duty order for the 2008/09 period in a timely manner. Therefore, in accordance with 19 CFR 351.213(d)(1), we rescinded the 2008/09 review with respect to CVP 23 from India produced and/or exported by Meghmani.
On June 3, 2010, we sent a questionnaire to Meghmani requesting further information on the nature of the name change and whether additional changes had occurred. Although we granted Meghmani an extension of the deadline to respond, Meghmani did not respond to our questionnaire. Instead, on July 6, 2010, Meghmani notified the Department that it will not participate in the changed-circumstances review. Meghmani did not provide any reasons for its decision to withdraw its participation from the changed-circumstances review.
Since the initiation of the review, no other interested party has submitted comments.
The merchandise subject to the order is carbazole violet pigment 23 identified as Color Index No. 51319 and Chemical Abstract No. 6358–30–1, with the chemical name of diindolo [3,2-b:3′,2′-m]
For the reason discussed below, we determine that the use of adverse facts available is appropriate for the preliminary results of the changed-circumstances review with respect to Meghmani.
Section 776(a)(2) of the Act provides that, if an interested party withholds information requested by the administering authority, fails to provide such information by the deadlines for submission of the information and in the form or manner requested, significantly impedes a proceeding under this title, or provides such information but the information cannot be verified as provided in section 782(i)
Because Meghmani did not respond to our June 3, 2010, questionnaire, pursuant to sections 776(a)(2)(A) and (B) of the Act, we must rely entirely on facts available.
In selecting among the facts otherwise available, section 776(b) of the Act provides that, if the Department finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information, the Department may use an inference adverse to the interests of that party. In addition, the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. 103–316, Vol. 1, 103d Cong. (1994), reprinted in 1994 U.S.C.C.A.N. 4040 (SAA), establishes that the Department may employ an adverse inference “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
We find that, by failing completely to respond to our questionnaire in the changed-circumstances review concerning its name change, Meghmani withheld requested information and thus failed to cooperate to the best of its ability and, therefore, we may use an inference that is adverse to the interests of Meghmani.
Where the Department applies an adverse inference because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record.
Because we are making an adverse inference with regard to Meghmani based on the most recent information at our disposal, we preliminarily find that Meghmani is the successor-in-interest to Alpanil. In making the adverse inference, we have relied on the information placed on the record by Meghmani to determine that Meghmani is the successor-in-interest to Alpanil. See section 776(b) of the Act.
Case briefs from interested parties may be submitted not later than 15 days after the date of publication of this notice of preliminary results of changed-circumstances review.
Interested parties who wish to request a hearing or to participate in a hearing if a hearing is requested must submit a written request to the Assistant Secretary for Import Administration within 15 days of the date of publication of this notice.
The Department will publish in the
As indicated in the
We are issuing and publishing these preliminary results and notice in accordance with sections 751(b) and 777(i)(1) of the Act and 19 CFR 351.216.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 126 under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 1, 4, 5, 7–14 and 17 if not activated by August 31, 2015, and to a three-year ASF sunset provision for usage-driven sites that would terminate authority for Sites 2, 3, 15–16 and 18–19 if no foreign-status merchandise is admitted for a bona fide customs purpose by August 31, 2013.
Attest:
Foreign-Trade Zone 43 was approved by the FTZ Board on October 19, 1978 (Board Order 138, 43 FR 50233, 10/27/78), and expanded on December 27, 1990 (Board Order 496, 56 FR 675, 1/8/91), January 3, 1992 (Board Order 554, 57 FR 1143, 1/10/92 and Board Order 555, 57 FR 1143, 1/10/92), and June 20, 1997 (Board Order 897, 62 FR 36044, 7/3/97 and Board Order 898, 62 FR 36043, 7/3/97).
FTZ 43 currently consists of 5 “sites” totaling 1,820 acres in the Battle Creek, Michigan area. The current update does not alter the physical boundaries that have previously been approved, but instead involves an administrative renumbering that separates certain non-contiguous sites for record-keeping purposes.
Under this revision, the site list for FTZ 43 will be as follows: Site 1 (1,710 acres)—within the Fort Custer Industrial Park, Battle Creek; Site 2 (21 acres)—Columbia West Industrial Park, Battle Creek; Site 3 (23 acres)—6677 Beatrice Drive in Texas Township (Kalamazoo County); Site 4 (22 acres)—8250 Logistic Drive, Zeeland Township (Ottawa County), some 20 miles southwest of Grand Rapids; Site 5 (30 acres)—located within the 120-acre St. Joseph River Harbor Development Area adjacent to Lake Michigan in Benton Harbor (Berrien County), some 50 miles east of Battle Creek; Site 7 (14 acres)—72100 Highway M–40 South, Lawton (Van Buren County); and Site 8 (50,000 sq. ft.)—located at 1609 Parnall Road, Jackson (approved on a temporary basis until 1/31/11).
For further information, contact Elizabeth Whiteman at
National Security Agency, DoD.
Notice.
The National Security Agency hereby gives notice of its intent to grant Doar, Pekuin, Sall Limited Liability Company a revocable, non-assignable, exclusive, license to practice the following Government-Owned invention as described in U.S. Patent No. 6,404,407 entitled “Ridge laser with oxidized strain-compensated superlattice of group III–V semiconductor.” The invention is assigned to the United States Government as represented by the National Security Agency.
Anyone wishing to object to the grant of this license has fifteen (15) days from the publication date of this notice to file written objections along with any supporting evidence, if any.
Written objections are to be filed with the National Security Agency Technology Transfer Program, 9800 Savage Road, Suite 6541, Fort George G. Meade, MD 20755–6541.
Marian T. Roche, Director, Technology Transfer Program, 9800 Savage Road, Suite 6541, Fort George G. Meade, MD 20755–6541, telephone (443) 479–9569.
Notice is hereby given that the Delaware River Basin Commission will hold an informal conference followed by a public hearing on Wednesday, September 15, 2010. The hearing will be part of the Commission's regular business meeting. The conference session and business meeting both are open to the public and will be held at the West Trenton Volunteer Fire Company, located at 40 West Upper Ferry Road, West Trenton, New Jersey.
The conference among the commissioners and staff will begin at 10:30 a.m. and will consist of: A report by staff on the year's progress in implementing the 2004 Basin Plan; a report by a representative of the U.S. Army Corps of Engineers on the regional sediment management planning process; and a presentation by a representative of the U.S. Environmental Protection Agency on the Delaware Basin Source Water Collaborative Forum to take place on March 10, 2011.
The subjects of the public hearing to be held during the 1:30 p.m. business meeting include the dockets listed below:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
In addition to the standard business meeting items, consisting of adoption of the Minutes of the Commission's May 5 and July 14, 2010 business meetings, announcements of upcoming meetings and events, a report on hydrologic conditions, reports by the Executive Director and the Commission's General Counsel, public hearings on water withdrawal and discharge projects, and public dialogue, the business meeting also will include a public hearing on a resolution concerning delegation of DRBC review of the Southport Marine Terminal project and consideration by the Commission of its proposal (published in February and March of 2010) to amend water charging rates.
Draft dockets scheduled for public hearing on September 15, 2010 can be accessed through the Notice of Commission Meeting and Public Hearing on the Commission's Web site, drbc.net, ten days prior to the meeting date. Additional public records relating to the dockets may be examined at the Commission's offices. Please contact William Muszynski at 609–883–9500, extension 221, with any docket-related questions.
Note that conference items are subject to change and items scheduled for hearing are occasionally postponed to allow more time for the Commission to consider them. Please check the Commission's Web site, drbc.net, closer to the meeting date for changes that may be made after the deadline for filing this notice.
Individuals who wish to comment for the record on a hearing item or to address the Commissioners informally during the public dialogue portion of the meeting are asked to sign up in advance by contacting Ms. Paula Schmitt of the Commission staff, at
Individuals in need of an accommodation as provided for in the Americans with Disabilities Act who wish to attend the informational meeting, conference session or hearings should contact the Commission Secretary directly at 609–883–9500 ext. 203 or through the Telecommunications Relay Services (TRS) at 711, to discuss how the Commission can accommodate your needs.
Department of Education.
Comment request.
The Acting Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before September 29, 2010.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395–5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate 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; (2) Evaluate the accuracy of the agency's 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 collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Requests for copies of the information collection submission for OMB review
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
U.S. Election Assistance Commission.
Notice of closed meeting agenda.
Wednesday, September 1, 2010; 9:30 a.m.–12 p.m. EDT.
U.S. Election Assistance Commission, 1201 New York Ave., NW., Washington, DC 20005.
Commissioners will hold a closed session discussion regarding a personnel matter on the appointment of an EAC general counsel.
* View EAC Regulations Implementing Government in the Sunshine Act. This meeting will be closed to the public.
Bryan Whitener, Telephone: (202) 566–3100.
On May 11, 2010, and supplemented on July 20, 2010, Energy Exchange, Inc. filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Tacoma Water Supply Hydroelectric Project (Tacoma Project). The Tacoma Project would be located within the city of Tacoma in Pierce County, Washington on an existing water conveyance system.
The Tacoma Project would consist of: (1) Two existing 60-inch diameter pipelines that originate at the Green River headworks at the lower end of the Green River Watershed; (2) two new powerhouses to be located at two points along the pipelines with one 1.8-megawatt (MW) turbine/generating unit at each; (3) a new three-phase transmission line (voltage to be determined) connecting to the nearest tie-in point of a local utility. The project would produce an estimated average annual generation of about 31,000 megawatt-hours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on August 12, 2010, Colorado Interstate Gas Company (CIG), P.O. Box 1087, Colorado Springs, Colorado 80944, pursuant to section 7(c) of the Natural Gas Act (NGA), filed in Docket No. CP10–486–000, an application authoring the construction and operation of an air blending station consisting of compression and appurtenant facilities located in Douglas County, Colorado. Specifically, CIG states that it proposes: (1) To construct and operate the Spruce Hill Air Blending Project facilities (Project); (2) to charge and collect, pursuant to section 4 of the NGA, the New Spruce Hill Gas Quality Control Surcharge for services to be rendered via the Project; (3) acceptance of certain potential non-conforming contract provisions contained in the executed Firm Transportation Service Agreements (FTSA) for the Project; and (4) exemption, for one of the FTSAs, from the collection of Fuel Gas. The proposed facilities will be constructed adjacent to CIG's existing Spruce Hill Meter Station. CIG estimates the cost of the facilities will be $15,900,000, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Any questions regarding the application should be directed to Ms. Susan C. Stires, Director, Regulatory Affairs, Colorado Interstate Gas Company, P.O. Box 1087, Colorado Springs, Colorado, 80944 at (719) 667–7514 or by fax at (719) 520–4697. or Mr. Craig V. Richardson, Vice President and General Counsel, Colorado Interstate Gas Company; P.O. Box 1087, Colorado Springs, Colorado, 80944 at (719) 520–4370 or by fax at (719) 520–4898.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit original plus seven copies of any filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On May 5, 2010, and amended on July 19, 2010, Energy Exchange, Inc. filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Geren Island Hydroelectric Project (Geren Island Project). The Geren Island Project would be located within the city of Salem, Marion County, Oregon.
The Geren Island Project would consist of: (1) The city of Salem's existing water delivery system consisting of two reservoirs (Frazen and Fairmont) and two existing, 36- and 54- inch diameter steel pipelines; (2) three proposed powerhouses, each to contain a 0.37-megawatt-(MW) turbine-generating unit, with a total capacity of 1.11 MW, and (3) a new three-phase transmission line (voltage to be determined) to connect with the nearest tie-in point of a local power company grid system. The project would produce an estimated average annual generation of about 8,000 megawatt-hours.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on August 6, 2010, Turtle Bayou Gas Storage Company, LLC (Turtle Bayou), One Office Park Circle, Suite 300, Birmingham, Alabama 35223, filed in the above referenced docket an application pursuant to section 7(c) of the Natural Gas Act (NGA), for an order granting a certificate of public convenience to construct, own, operate, and maintain a new salt dome natural gas storage facility in two caverns and related facilities to be located in Chambers and Liberty Counties, Texas. Turtle Bayou is requesting blanket certificates under Part 284, Subpart G and Part 157, Subpart F of the Commission's regulations. Turtle Bayou also seeks for authorization of market based rates, approval of the pro forma tariff, and waivers of some of the Commission's regulations, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
The filing may also be viewed on the Web at
Turtle Bayou's new storage project has been designed to provide approximately 12 billion cubic feet (Bcf) of working gas capacity with a maximum injection rate of up to 300 million cubic feet per day (MMcf/d) and a maximum withdrawal rate of 600 MMcf/d. Additionally, Turtle Bayou intends to construct a total of 13.1 miles of 24-inch diameter pipeline to deliver the natural gas to Natural Gas Pipeline Company of America and Texas Eastern Transmission, LP, as well as three reciprocating units to produce a total of 16,470 horsepower, leaching facilities, water supply wells, brine disposal wells, and two meter stations.
Any questions concerning this application may be directed to Jim Lindsay, Turtle Bayou Gas Storage Company, LLC, One Office Park Circle, Suite 300, Birmingham, Alabama 35223, at (877) 558–4521 or
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on August 20, 2010, E. I. du Pont de Nemours and Company, filed clarification and an amendment to its July 19, 2010 petition for market-based rate authorization and request for waivers and blanket authorizations.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On May 5, 2010, and amended on July 19, 2010, Energy Exchange, Inc. filed an application, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Bear Creek Hydroelectric Project (Bear Creek Project). The Bear Creek Project would be located at Bear Creek Dam Municipal Water System within the city of Astoria, Clatsop County, Oregon. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The Bear Creek Project would consist of: (1) The existing Bear Creek reservoir and two other reservoirs (known as # 2 and # 3); (2) the existing 21-inch diameter steel pipes; (3) two new powerhouses to be located at reservoir # 2 and reservoir # 3; (4) one 125-kilowatt (kw) turbine/generating unit, to be installed in each powerhouse; and (5) a new three-phase transmission line (voltage to be determined) to connect with the nearest tie-in point on a local electric grid system. The project would produce an estimated average annual generation of about 1,700 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on August 12, 2010, ANR Pipeline Company (ANR), 717 Texas Street, Houston, Texas 77002–2761, filed in Docket No. CP10–484–000 an application, pursuant to sections 157.205 and 157.216(b) of the Commission's Regulations under the Natural Gas Act (NGA), as amended, for permission and approval to abandon by sale certain natural gas facilities located between Eugene Island Blocks 307 and
ANR proposes to abandon by sale approximately its Line 607
ANR further states that upon abandonment of the Line 607 facilities, Dynamic intends to operate the facilities as non-jurisdictional facilities and ANR further requests that the Commission consider the Line 607 Facilities to be non-jurisdictional gathering not subject to jurisdiction under Section 1(b) of the Natural Gas Act. However, this specific jurisdictional status request is beyond the scope of requests eligible for consideration under a blanket certificate and the prior notice process. As discussed in Commission Order No. 603–A, the Commission stated that “* * * we clarify that using either the automatic or prior notice authority of this section to abandon facilities by sale to a third party does not address the jurisdictional status of the facilities after the effective date of abandonment. The acquiring party is still responsible for seeking a determination, if one is desired, on the jurisdictional status of the facilities.”
Any questions concerning this application may be directed to Rene Staeb, Manager, Project Determinations & Regulatory Administration, ANR Pipeline Company, 717 Texas Street, Houston, Texas 77002, or via telephone at (832) 320–5215, facsimile (832) 320–6215, or e-mail
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the NGA.
By order dated July 26, 2010, in Docket No. ER10–1401–000, the Federal Energy Regulatory Commission (Commission) directed staff to convene a technical conference regarding California Independent System Operator Corporation's (CAISO) proposed Revised Transmission Planning Process (RTPP).
Pursuant to notices issued on August 3, 2010 and August 19, 2010, such conference will be held on August 24, 2010 at the Commission's headquarters at 888 First Street, Washington, DC 20426, beginning at 9 a.m. (EDT) in the Commission Meeting Room. The technical conference will be led by Commission staff. Commissioners may attend the conference.
We emphasize that the purpose of the technical conference is to discuss the issues raised by CAISO's proposed revisions to its Open Access Transmission Tariff (Tariff) to implement its RTPP in Docket No. ER10–1401–000 and obtain additional information regarding CAISO's proposal. However, because CAISO's RTPP filing presents issues that may be tangentially related to the proceedings in Docket Nos. ER10–732–000 and ER10–732–001; Docket Nos. EL10–1–000, EL10–1–001 and EL10–1–002; and Docket Nos. ER10–796–000 and ER10–796–001, in an abundance of caution, we hereby notify parties that the technical conference discussion may touch upon issues pending in these proceedings.
A free Webcast of this event is available through
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
For more information on this conference, please contact Robert Petrocelli at
Environmental Protection Agency (EPA).
Notice of data availability (NODA).
EPA is administering—under the Clean Air Interstate Rule (CAIR) Federal Implementation Plans (FIPs)—the CAIR NO
Under § 97.153(e), EPA must record, by December 1, 2010, the CAIRNOX new unit set-aside allowance allocations, consistent with this NODA, in the compliance accounts of units whose owners and operators successfully applied for a CAIRNOX new unit set-aside allowance allocation under the CAIR FIPs.
Questions concerning this action should be addressed to Robert L. Miller, U.S. Environmental Protection Agency, CAMD (6204J), 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone (202) 343–9077, and e-mail
For more background and information regarding the purpose of the NODA, requirements for requesting and receiving CAIRNOX new unit set-aside allowances under the CAIR FIPs, procedures for allocating such allowances, application of requirements to individual CAIRNOX new unit set-aside allocation requests, and interpretation of the data upon which the CAIRNOX new unit set-aside allocations for 2010 and denials of allocations were based,
EPA received no objections to the determinations and data in the June 29, 2010 NODA. Therefore, EPA adopts the CAIRNOX new unit set-aside allocations set forth in the June 29, 2010 NODA.
EPA is not requesting objections to the data provided in this final NODA. This action constitutes a final action for determining the CAIRNOX new unit set-aside allowance allocations under § 97.142 and the CAIR FIPs for 2010.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public meeting of the Chartered SAB to receive briefings from EPA and EPA Federal advisory committee representatives and to continue the SAB's discussions with EPA's Office of Research and Development (ORD) concerning EPA's strategic research directions. The SAB will also quality review one draft report.
The public meeting will be held on Tuesday, September 21, 2010 from 1:30 p.m. to 5:30 p.m. (Eastern Time) and Wednesday, September 22, 2010 from 9 a.m. to 2:30 p.m. (Eastern Time).
The meeting will be held at the Doubletree Hotel, 1515 Rhode Island Avenue, NW., Washington, DC.
Any member of the public who wants further information concerning the meeting may contact Dr. Angela Nugent, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via telephone/voice mail (202) 564–2218, fax (202) 202–565–2098; or e-mail at
The chartered SAB is holding this meeting to receive briefings from: (a) Liaison members who chair other Federal advisory committees that address priority Agency science activities and (b) Agency representatives on EPA's Gulf Oil Spill science activities. In addition, EPA's Office of Research and Development (ORD) had requested SAB advice on strategic research directions over the next five years to support EPA's mission and priorities. The chartered SAB initiated discussions on November 9–10, 2009 (74 FR 52805–52806) and April 5–6, 2010 (75 FR 11883–11884) and provided an interim report on this topic, “Office of Research and Development Strategic Research Directions and Integrated Transdisciplinary Research” (EPA–SAB–10–010), available on the SAB Web site at
Environmental Protection Agency (EPA).
Notice of meeting.
Under the Federal Advisory Committee Act, Public Law 92463, EPA gives notice of a public meeting of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice to the EPA Administrator on a broad range of environmental policy, technology, and management issues. NACEPT represents diverse interests from academia, industry, non-governmental organizations, and local, State, and tribal governments. The Council will continue discussing the workplans it is developing to respond to EPA's request for advice on workforce issues the Agency is facing and how EPA can best address the needs of vulnerable populations. A copy of the agenda for the meeting will be posted at
NACEPT will hold a public meeting on Monday, September 27, 2010 from 9 a.m. to 5:30 p.m. and Tuesday, September 28, 2010 from 8:30 a.m. to 2 p.m. Eastern Daylight Time.
The meeting will be held in the Madison, Loews Hotel, 1177 15th Street, NW., Washington, DC 20005.
Nancy New, Acting Designated Federal Officer,
Requests to make oral comments or to provide written comments to NACEPT should be sent to Nancy New at (202) 564–0464 or
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region II, of two proposed
Comments must be submitted on or before September 29, 2010.
The proposed settlement is available for public inspection at EPA Region II offices at 290 Broadway, New York, New York 10007–1866. Comments on the MTA-Tyson settlement should reference the Mercury Refining Superfund Site, Index No. CERCLA–02–2010–2002. Comments on the MG-OxyChem settlement should reference the Mercury Refining Superfund Site, Index No. CERCLA–02–2010–2013. To request a copy of either settlement agreement, please contact Sharon E. Kivowitz at the address identified below. All comments should be submitted to Sharon E. Kivowitz at the address identified below.
Sharon E. Kivowitz, Assistant Regional Counsel, New York/Caribbean Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, 17th Floor, 290 Broadway, New York, New York 10007–1866. Telephone: 212–637–3183. E-mail:
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 (PRA) of 1995, 44 U.S.C. 3501 – 3520. 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; (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, and (e) ways to further reduce the information collection burden for small business concerns with fewer than 25 employees.
The FCC 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 currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 29, 2010. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202–395–5167 or via email to Nicholas_A._Fraser@omb.eop.gov and to the Federal Communications Commission via email to PRA@fcc.gov and Cathy.Williams@fcc.gov.
Cathy Williams on (202) 418–2918.
OMB Approval Number: 3060–0216.
Title: Section 73.3538, Application to Make Changes in an Existing Station; Section 73.1690(e), Modification of Transmission Systems.
Form Number: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit entities, Not–for–profit institutions.
Number of Respondents and Responses: 650 respondents and 650 responses.
Estimated Hours per Response: 0.50 – 3 hours
Frequency of Response: On occasion reporting requirement; Recordkeeping requirement.
Total Annual Burden: 1,100 hours
Annual Burden Cost: None.
Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Sections 154(i), 303(r), 308, 309(j) and 337(e) of the Communications Act of 1934, as amended.
Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.
Privacy Impact Assessment: No impact(s).
Needs and Uses: Section 73.3538(b)(1) of the Commission's rules requires a broadcast station to file an informal application to modify or discontinue the obstruction marking or lighting of an antenna supporting structure.
Section 73.1690(e) of the Commission's rules requires AM, FM and TV station licensees to prepare an informal statement or diagram describing any electrical and mechanical modification to authorized transmitting equipment that can be made without prior Commission approval provided that equipment performance measurements are made to ensure compliance with FCC rules. This informal statement or diagram must be retained at the transmitter site as long as the equipment is in use.
OMB Control Number: 3060–0248.
Title: Section 74.751, Modification of Transmission Systems.
Form Number: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit entities; Not–for–profit institutions; State, Local or Tribal Government.
Number of Respondents and Responses: 400 respondents and 400 responses.
Estimated Time per Response: 0.50 hours.
Frequency of Response: On occasion reporting requirement; Recordkeeping requirement.
Total Annual Burden: 200 hours.
Total Annual Cost: None.
Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in Section 154(i) of the Communications Act of 1934, as amended.
Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.
Privacy Impact Assessment: No impact(s).
Needs and Uses: 47 CFR 74.751(c) requires licensees of low power TV or TV translator stations to send written notification to the FCC of equipment changes which may be made at licensee's discretion without the use of a formal application. Section 74.751(d) requires that licensees of low power TV or TV translator stations place in the station records a certification that the installation of new or replacement transmitting equipment complies in all respects with the technical requirements of this section and the station authorization. The notifications and certifications of equipment changes are used by FCC staff to ensure that the equipment changes made are in full compliance with the technical requirements of this section and the station authorizations and will not cause interference to other authorized stations.
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 (PRA) of 1995, 44 U.S.C. 3501 – 3520. 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; (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, and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC 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 currently valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 29, 2010. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202–395–5167 or via email to Nicholas_A._Fraser@omb.eop.gov and to the Federal Communications Commission via email to PRA@fcc.gov and Cathy.Williams@fcc.gov.
Cathy Williams on (202) 418–2918.
OMB Control Number: 3060–0316.
Title: 47 CFR Sections 76.1700, Records to Be Maintained Locally by Cable System Operators; 76.1703, Commercial Records on Children's Programs; 76.1704, Proof–of–Performance Test Data, 76.1707 Leased Access, 76.1711 Emergency Alert System (EAS) Tests and Activation.
Form Number: N/A.
Type of Review: Extension of a currently approved collection.
Respondents: Business or other for–profit entities.
Number of Respondents and Responses: 3,000 respondents and 3,000 responses.
Estimated Hours per Response: 26 hours.
Frequency of Response: Recordkeeping requirement.
Total Annual Burden: 78,000 hours.
Total Annual Cost: None.
Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 4(i), 303 and 308 of the Communications Act of 1934, as amended.
Nature and Extent of Confidentiality: Confidentiality is not required with this collection of information.
Privacy Impact Assessment (s): No impact(s).
Needs and Uses: 47 CFR Section 76.1700 exempts cable television systems having fewer than 1,000 subscribers from the public inspection requirements contained in 47 CFR Sections 76.1701 (political file); 76.1702 (equal employment opportunity); 76.1703 (commercial records for
The operator of every cable television system having 1,000 or more subscribers but fewer than 5,000 subscribers shall, upon request, provide the information required by §§ 76.1702 (equal employment opportunity); 76.1703 (commercial records for children's programming); 76.1704 (proof–of–performance test data); 76.1706 (signal leakage logs and repair records); and 76.1715 (sponsorship identifications) but shall maintain for public inspection a file containing a copy of all records required to be kept by 47 CFR Section 76.1701 (political files).
The operator of every cable television system having 5,000 or more subscribers shall maintain for public inspection a file containing a copy of all records which are required to be kept by §§ 76.1701 (political file); 76.1702 (equal employment opportunity); 76.1703 (commercial records for children's programming); 76.1704 (proof–of–performance test data); 76.1706 (signal leakage logs and repair records); and 76.1715 (sponsorship identifications).
47 CFR Section 76.1700(b) requires that the public inspection file shall be maintained at the office which the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business or at any accessible place in the community served by the system unit(s) (such ass a public registry for documents or an attorney's office). The public inspection file shall be available for public inspection at any time during regular business hours.
47 CFR Section 76.1700(d) requires the records specified in paragraph (a) of this section shall be retained for the period specified in §§ 76.1701, 76.1702, 76.1704(a), and 76.1706.
47 CFR Section 76.1703 requires that cable operators airing children's programming must maintain records sufficient to verify compliance with 47 CFR Section 76.225 and make such records available to the public. Such records must be maintained for a period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B).
47 CFR Section 76.1704(a) requires the proof of performance tests required by § 76.601 shall be maintained on file at the operator's local business office for at least five years. The test data shall be made available for inspection by the Commission or the local franchiser, upon request.
47 CFR 76.1704(b) requires the provisions of paragraph (a) of this section shall not apply to any cable television system having fewer than 1,000 subscribers, subject to the requirements of § 76.601(d).
47 CFR 76.1707 requires that if a cable operator adopts and enforces a written policy regarding indecent leased access programming pursuant to § 76.701, such a policy will be considered published pursuant to that rule by inclusion of the written policy in the operator's public inspection file.
47 CFR Section 76.1711 requires that records be kept of each test and activation of the Emergency Alert System (EAS) procedures pursuant to the requirement of 47 CFR Part 11 and the EAS Operating Handbook. These records shall be kept for three years.
Federal Election Commission.
Tuesday, August 24, 2010, at 10 a.m.
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Audits conducted pursuant to 2 U.S.C. 437g, 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Thursday, August 26, 2010, at 10 a.m.
999 E Street, NW., Washington, DC (Ninth Floor)
This meeting will be open to the public.
Correction and Approval of Minutes.
Draft Advisory Opinion 2010–14: Democratic Senatorial Campaign Committee by its counsel, Marc E. Elias, Esq., and Jonathan S. Berkon, Esq., of Perkins Coie, LLP.
Draft Advisory Opinion 2010–15: Pike for Congress by its counsel, Brian G. Svoboda, Esq., and Jonathan S. Berkon, Esq., of Perkins Coie, LLP.
Explanation and Justification and Final Rules on Coordinated Communications.
Explanation and Justification and Final Rules on Federal Election Activity.
Management and Administrative Matters.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Commission Secretary and Clerk, at (202) 694–1040, at least 72 hours prior to the hearing date.
Judith Ingram, Press Officer Telephone: (202) 694–1220.
Federal Housing Finance Agency.
Notice of the establishment of a new system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended (Privacy Act), the Federal Housing Finance Agency (FHFA) gives notice of a proposed Privacy Act system of records to replace a system of records issued by FHFA's predecessor agency, the Office of Federal Housing Enterprise Oversight (OFHEO) which was abolished July 30, 2009, and to fulfill FHFA's statutory requirement to collect the records. Upon the effective date of this notice, system OFHEO–07, “Mortgage Fraud System” published at 71 FR 6085 on February 6, 2006 will be deleted.
The proposed system named “Fraud Reporting System” (FHFA–6) will maintain information of fraud or possible fraud involving the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal Home Loan Banks (collectively, “regulated entities”). This system is being established so that FHFA may carry out its statutory authority to require the regulated entities to report fraud or possible fraud upon discovery and in
The new system of records will become effective on October 12, 2010 without further notice unless comments necessitate otherwise. FHFA will publish a new notice if the effective date is delayed to review comments or if changes are made based on comments received. To be assured of consideration, comments should be received on or before September 29, 2010.
Submit comments to FHFA only once, identified by “2010–N–13,” using any one of the following methods:
•
•
•
•
John Major, Privacy Act Officer,
The Housing and Economic Recovery Act of 2008 (HERA), Public Law 110–289, 122 Stat. 2654 (2008), amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501
Section 1379E of the Safety and Soundness Act (section 1379E) (12 U.S.C. 4642(a)) subjects the regulated entities to both fraud reporting and internal control requirements. Under this statutory provision, the Director of FHFA must require a regulated entity to submit a timely report upon discovery that it has purchased or sold a fraudulent loan or financial instrument, or suspects a possible fraud relating to the purchase or sale of any loan or financial instrument. Additionally, the Director must require each regulated entity to establish and maintain procedures designed to discover any such transactions.
This notice informs the public of FHFA's proposal to establish and maintain a new system of records and to delete an obsolete system of records. The proposed new system of records is: FHFA–6, Fraud Reporting System. The deleted system of records is: OFHEO–07 Mortgage Fraud System.
This notice satisfies the Privacy Act requirement that an agency publish a system of records notice in the
As required by the Privacy Act, 5 U.S.C. 552a(r), and pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996; 61 FR 6427, 35), FHFA has submitted a report describing the new system of records covered by this notice, to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget.
The proposed new system of records described above is set forth in its entirety below.
Fraud Reporting System.
Unclassified but sensitive.
Federal Housing Finance Agency, 1700 G Street, NW., Washington, 20552; 1625 Eye Street, NW., Washington, DC 20006; and any alternate work site utilized by employees of the Federal Housing Finance Agency or by individuals assisting such employees.
The “Fraud Reporting System” contains information about individuals that are suspects of a fraud or possible fraud in connection with a loan or financial instrument purchased or sold involving the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or the Federal Home Loan Banks (collectively, “regulated entities”). Such records may include information on:
(a) Individuals who are directors, officers, employees, agents, of a regulated entity;
(b) Individuals that are actual or potential victims of fraud or possible fraud;
(c) Individuals who are named as possible witnesses;
(d) Individuals who have or might have information about reported matters;
(e) Individuals named as preparers of any reports; or
(f) Individuals named as persons to be contacted for assistance by FHFA.
Records in the “Fraud Reporting System” contain information about the individuals specified in “Categories of Individuals Covered by the System” such as name, address, social security numbers, and financial information. The records may also contain information pertaining to criminal prosecutions, civil actions, enforcement proceedings, and investigations resulting from or relating to the records.
The system is established and maintained pursuant to 12 U.S.C. 4513, 4514, 4526 and 4642 and 12 CFR part 1233.
The information in this system of records will be analyzed by FHFA staff in carrying out the statutory authorities of the Director to require the regulated entities to report fraud or possible fraud involving a loan or financial instrument purchased or sold by the regulated entity upon discovery consistent with the safety and soundness responsibilities of FHFA under the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended.
It shall be a routine use to disclose information contained in this system for the purposes and to the users identified below:
1. FHFA personnel authorized as having a need to access the records in performance of their official functions.
2. The Financial Crimes Enforcement Network and other law enforcement and government entities, as determined by FHFA to be appropriate.
3. A regulated entity.
4. A consultant, person, or entity that contracts or subcontracts with FHFA, to the extent necessary for the performance of the contract or subcontract and consistent with the purpose of the system, provided that the person or entity acknowledges in writing that it is required to maintain Privacy Act safeguards for the information.
None.
Records in this system are stored in paper and electronic format.
Records may be retrieved by sectionalized data fields or by the use of search and selection criteria, such as an individual's or entity's name.
Records are maintained in controlled access areas. Electronic records are protected by restricted access procedures, including user identifications and passwords. Only FHFA staff whose official duties require access are allowed to view, administer, or control these records.
Records are maintained in accordance with National Archives and Records Administration and FHFA retention schedules. Records are disposed of according to accepted techniques.
Division of Enterprise Regulation, Federal Housing Finance Agency, 1700 G Street, NW., Washington, DC 20552 and the Division of Bank Regulation, Federal Housing Finance Agency, 1625 Eye Street, NW., Washington, DC 20006.
Direct inquiries as to whether this system contains a record pertaining to an individual to the Privacy Act Officer by electronic mail, regular mail, or fax. The electronic mail address is:
Direct requests to access, amend, or correct a record to the Privacy Act Officer, Federal Housing Finance Agency, 1625 Eye Street, NW., Washington, DC 20006, in accordance with the procedures set forth in 12 CFR part 1204.
Direct requests to contest or appeal an adverse determination for a record to the Privacy Act Appeals Officer, Federal Housing Finance Agency, 1700 G Street, NW., Washington, DC 20552, in accordance with the procedures set forth in 12 CFR part 1204.
The information is obtained from the regulated entities.
Some information in this system that is investigatory and compiled for law enforcement purposes is exempt under subsection 552a(k)(2) of the Privacy Act.
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
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 September 14, 2010.
Board of Governors of the Federal Reserve System, August 25, 2010.
Office of Governmentwide Policy (OGP), General Services Administration (GSA).
Notice of Per Diem Bulletin 11–01, Fiscal Year (FY) 2011 Continental United States (CONUS) per diem rates.
The General Services Administration's (GSA) annual per diem review has resulted in lodging and meal allowance changes for locations within CONUS to provide for the reimbursement of Federal employees' expenses covered by per diem. This Per Diem Bulletin updates the maximum per diem amounts in existing per diem localities and updates the standard CONUS rate. The CONUS per diem rates prescribed in Bulletin 11–01 may be found at
If a per diem rate is insufficient to meet necessary expenses in any given location, Federal executive agencies can request that GSA review that location. Please review numbers five and six of GSA's per diem Frequently Asked Questions at (
In addition, the Federal Travel Regulation allows for actual expense reimbursement as directed in § 301–11.300 through 301–11.306. GSA may begin asking agencies for data related to their use of actual expense approvals; if so, more information will be forthcoming.
This notice is effective October 1, 2010, and applies for travel performed on or after October 1, 2010 through September 30, 2011.
For clarification of content, contact Ms. Jill Denning, Office of Governmentwide Policy, Office of Travel, Transportation, and Asset Management, at (202) 208–7642, or by e-mail at
After analyzing recent lodging data, GSA determined that lodging rates for certain localities do not adequately reflect the current lodging markets. GSA used the same lodging rate setting methodology for establishing the FY 2011 per diem rates as when establishing the FY 2010 rates.
GSA issues and publishes the CONUS per diem rates, formerly published in Appendix A to 41 CFR Chapter 301, solely on the Internet at
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden. To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding
Pursuant to Public Law 92–463, notice is hereby given of the twenty-third meeting of the Secretary's Advisory Committee on Genetics, Health, and Society (SACGHS), U.S. Public Health Service. The meeting will be held from 8:30 a.m. to approximately 5:30 p.m. on Tuesday, October 5, 2010, and from 8:30 a.m. to approximately 3:45 p.m. on Wednesday, October 6, 2010, at the National Institute of Health, Building 31, Conference Room 6C6, 9000 Rockville Pike, Bethesda, MD 20892. The meeting will be open to the public with attendance limited to space available. The meeting will also be Web cast.
The main agenda item will be a review of the revised draft report on genetics education and training and discussion of the final draft recommendations. The meeting will also include sessions on genomic data sharing and the implications of affordable whole-genome sequencing, an update on the implementation of the Genetic Information Nondiscrimination Act, and a briefing from the Food and Drug Administration on activities related to genetic testing.
As always, the Committee welcomes hearing from anyone wishing to provide public comment on any issue related to genetics, health and society. Please note that because SACGHS operates under the provisions of the Federal Advisory Committee Act, all public comments will be made available to the public. Individuals who would like to provide public comment should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at 301–496–9838 or e-mail at
Under authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established SACGHS to serve as a public forum for deliberations on the broad range of human health and societal issues raised by the development and use of genetic and genomic technologies and, as warranted, to provide advice on these issues. The draft meeting agenda and other information about SACGHS, including information about access to the Web cast, will be available at the following Web site:
Pursuant to Public Law 92–463, notice is hereby given of the twenty-third meeting of the Secretary's Advisory Committee on Genetics, Health, and Society (SACGHS), U.S. Public Health Service. The meeting will be held from 8:30 a.m. to approximately 5:30 p.m. on Tuesday, October 5, 2010, and from 8:30 a.m. to approximately 3:45 p.m. on Wednesday, October 6, 2010, at the National Institute of Health, Building 31, Conference Room 6C6, 9000 Rockville Pike, Bethesda, MD
The main agenda item will be a review of the revised draft report on genetics education and training and discussion of the final draft recommendations. The meeting will also include sessions on genomic data sharing and the implications of affordable whole-genome sequencing, an update on the implementation of the Genetic Information Nondiscrimination Act, and a briefing from the Food and Drug Administration on activities related to genetic testing.
As always, the Committee welcomes hearing from anyone wishing to provide public comment on any issue related to genetics, health and society. Please note that because SACGHS operates under the provisions of the Federal Advisory Committee Act, all public comments will be made available to the public. Individuals who would like to provide public comment should notify the SACGHS Executive Secretary, Ms. Sarah Carr, by telephone at 301–496–9838 or e-mail at carrs@od.nih.gov. The SACGHS office is located at 6705 Rockledge Drive, Suite 750, Bethesda, MD 20892. Anyone planning to attend the meeting who needs special assistance, such as sign language interpretation or other reasonable accommodations, is also asked to contact the Executive Secretary.
Under authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established SACGHS to serve as a public forum for deliberations on the broad range of human health and societal issues raised by the development and use of genetic and genomic technologies and, as warranted, to provide advice on these issues. The draft meeting agenda and other information about SACGHS, including information about access to the Web cast, will be available at the following Web site:
Pursuant to the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) announces the following advisory committee meeting.
On the morning of the second day there will be a review of the final letters regarding the national health plan identifier, operating rules on eligibility and claim status, and sensitive information in medical records. Subcommittees will also present their reports. The afternoon of the second day will conclude with a discussion of the 60th Anniversary Symposium that was held in June 2010.
The times shown above are for the full Committee meeting. Subcommittee breakout sessions can be scheduled for late in the afternoon of the first day and second day and in the morning prior to the full Committee meeting on the second day. Agendas for these breakout sessions will be posted on the NCVHS Web site (URL below) when available.
Should you require reasonable accommodation, please contact the CDC Office of Equal Employment Opportunity on (301) 458–4EEO (4336) as soon as possible.
Department of Health and Human Services, Office of the Secretary.
Notice.
As stipulated by the Federal Advisory Committee Act, the U.S. Department of Health and Human Services is hereby giving notice that the National Biodefense Science Board (NBSB) will be holding a public meeting. The meeting is open to the public.
The NBSB will hold a public meeting on September 22, 2010 from 8 a.m. to 5 p.m. ET. The agenda is subject to change as priorities dictate.
Washington, DC Metro Area. The venue details will be posted on the NBSB webpage at
E-mail:
Pursuant to section 319M of the Public Health Service Act (42 U.S.C. 247d–7f) and section 222 of the Public Health Service Act (42 U.S.C. 217a), the Department of Health and Human Services established the National Biodefense Science Board. The Board shall provide expert advice and guidance to the Secretary on scientific, technical, and other matters of special interest to the Department of Health and Human Services regarding current and future chemical, biological, nuclear, and radiological agents, whether naturally occurring, accidental, or deliberate. The Board may also provide advice and guidance to the Secretary on other matters related to public health emergency preparedness and response.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Understanding Patients' Knowledge and Use of Acetaminophen—Phase 2.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3520, AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by October 29, 2010.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by e-mail at
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by e-mail at
AHRQ proposes a cross-sectional prospective survey to identify issues that relate to the misuse and overdosing of over-the-counter (OTC) acetaminophen. The survey was developed based on results from a previous data collection (OMB control number 0935–0154, approved on 10/13/2009). Acetaminophen is the most widely used analgesic and antipyretic drug in the U.S. When appropriately used, it is a very safe agent. However, a single large overdose, or several supratherapeutic dosages in a short period of time, has been associated with acute liver failure, which can occur with dosages over 250 mg/kg over a 24-hour period, or > 12 g in an adult. Toxicity from acetaminophen has been on the rise in the past 3 decades, and is now the most common cause of acute liver failure in the U.S., surpassing viral hepatitis.
This project has the following aims:
(1) To estimate frequency of use, knowledge, and practices regarding use of OTC acetaminophen, and
(2) To evaluate potential determinants of misuse in community-based samples.
This information will be useful for policy makers to consider and to evaluate regulations and legislation with respect to the distribution, dispensing and sales of OTC acetaminophen.
This study is being conducted by AHRQ through its contractor, the University of Texas. This project supports AHRQ's Centers for Education and Research on Therapeutics initiative to promote the safe and effective use of therapeutics. See 42 U.S.C. 299b–1(b). It also supports AHRQ's mandate for the inclusion of priority populations. See 42 U.S.C. 299(c).
To achieve the projects' aims the following data collections will be implemented:
(1) Surveys with parents of young children (age < 8 years). The purpose of this survey is to learn how parents administer acetaminophen to their children and to identify determinants of misuse of acetaminophen;
(2) Surveys with adolescents (ages 13 to 20). The purpose of this survey is to learn how adolescents use acetaminophen and to identify determinants of misuse of acetaminophen;
(3) Surveys with adults (21 to 65 years of age). The purpose of this survey is to learn how adults use acetaminophen and to identify determinants of misuse of acetaminophen;
(4) Surveys with adults (greater than 65 years of age). The purpose of this survey is to learn how older adults use acetaminophen and to identify determinants of misuse of acetaminophen, particularly in regards to age-related factors.
Data will be collected in person using paper questionnaires administered by the project personnel.
Exhibit 1 shows the estimated annualized burden hours for the respondent's time to participate in this project. Each of the four questionnaires used in the planned face-to-face surveys will require approximately 30 minutes to complete. The total annualized burden for all participants is estimated to be 400 hours.
Exhibit 2 shows the estimated annualized cost burden for the respondent's time to participate in the project. The total annualized cost burden is estimated to be $8,361.
Exhibit 3 shows the estimated annualized cost to the Federal government for this six-month project. The total cost is $280,269. This amount includes all direct and indirect costs of the design, data collection, analysis, and reporting phase of the study.
In accordance with the above-cited Paperwork Reduction Act legislation, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–5960 or send an e-mail to
Workload Management Study of Central Cancer Registries—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC currently supports the National Program of Cancer Registries (NPCR), a group of central cancer registries in 45 states, the District of Columbia, and 2 territories. The central cancer registries are data systems that collect, manage, and analyze data about cancer cases and cancer deaths. NPCR-funded central cancer registries submit population-based cancer incidence data to CDC on an annual basis (OMB No. 0920–0469, exp. 11/30/2012).
Central cancer registries report that they are chronically understaffed, and many registries are concerned about the impact of staff shortages on data quality. Staffing patterns are known to vary widely from registry to registry, and registries differ in the volume of cases that they process as well as their use of information technology. Cancer registries have asked for clear staffing guidelines based on registry characteristics such as size, degree of automation, and reporting procedures.
CDC proposes to conduct a one-time Workload and Time Management (WLM) Survey to inform the development of staffing guidelines for central cancer registries. Respondents will be 46 cancer registrars in the NPCR-funded central cancer registries in 45 states and the District of Columbia. Participation will be requested by e-mail. Non-responders will receive follow-up telephone calls to encourage participation.
The WLM survey includes basic questions about registry characteristics such as organizational affiliation and number of staff. The WLM also includes
The web-based WLM Survey will also collect information about the total amount of time dedicated by registry staff to specific activities such as case finding, records abstraction, follow-up, quality assurance, professional development, travel, and death clearances. In order to complete this section of the WLM survey, detailed information will be collected from registry staff. An average of eight registrars in each registry will be asked to maintain a paper Work Activities Journal for a one-week period. Each registrar will record the number of hours and minutes dedicated to case finding, records abstraction, follow-up, and quality assurance, and where applicable, indicate whether tasks were conducted manually or electronically. In addition, each registrar will estimate the amount of time dedicated to auditing, database management, professional development, travel, and death clearances on a monthly or annual basis. At the end of the one-week data collection period, the registry manager will compile information from all of the Work Activities Journals completed by the registry's staff. The aggregate information will be reported to CDC through the WLM Survey. The individual Work Activities Journals will not be submitted to CDC.
Findings from the WLM survey will enable CDC to assess the workforce necessary for meeting data reporting requirements and to estimate the impact of planned changes to surveillance data reporting. CDC plans to develop guidance so that cancer registry managers can more effectively measure workload, evaluate the need for staff and staff credentials, and advocate for adequate staffing.
OMB approval is requested for one year. Participation in the survey is voluntary. There are no costs to respondents other than their time. The total estimated annualized burden hours are 921.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–5960 or send an e-mail to
National Notifiable Condition Messaging Support Strategy—New—Public Health Surveillance Program Office (PHSPO); Office of Surveillance, Epidemiology, and Laboratory Services (OSELS), Centers for Disease Control and Prevention, (CDC).
The Public Health Services Act (42 U.S.C. 241) authorizes CDC to disseminate nationally notifiable condition information. CDC's
NEDSS (OMB 0920–0728, expiration date: 2/28/2010) is an internet-based infrastructure for public health surveillance data exchange that uses specific Public Health Information Network (PHIN) and NEDSS electronic data and information standards to advance the development of efficient, integrated, and interoperable surveillance systems at federal, state and local levels. CDC's proposed Public Health Surveillance Program Office (PHSPO) is responsible for establishing and managing the national reporting system of epidemiologic data for notifiable conditions (diseases) via NEDSS.
Case notification messaging for most of the nationally notifiable conditions (77 infectious conditions as of August 2009) will eventually be supported by the standard Health Level 7 v2.5 (HL7) message format. The HL7 message format requires a Message Mapping Guide (MMG)—developed by the NEDSS and NNDSS programs, in collaboration with state and federal subject matter experts—to implement case notification to CDC via NEDSS. At present, seven MMGs are available for implementation by jurisdictions, and current NEDSS resources support the development of three new MMGs per year. A jurisdiction's implementation of a MMG requires an average of four months per MMG, and a jurisdiction could potentially implement up to three MMGs a year. In most instances, National Center for Public Health Informatics' (NCPHI) programmatic and technical expertise is required to support this process at the jurisdictional level.
The National Notifiable Condition Messaging Support Strategy
Questionnaires will be distributed to jurisdictions that initiate MMG implementation for a condition; therefore, the maximum annual frequency of responses per jurisdiction is three. The NEDSS team will request the jurisdiction to voluntarily complete the questionnaire, but a response is not a pre-requisite for support.
There is no cost to respondents other than their time to participate in the survey. The total estimated annual burden hours are 114.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by September 29, 2010.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
Denver Presley, Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 409(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 348(a)) provides that a food additive shall be deemed to be unsafe, unless: (1) The additive and its use, or intended use, are in conformity with a regulation issued under section 409 of the FD&C Act that describes the condition(s) under which the additive may be safely used; (2) the additive and its use, or intended use, conform to the terms of an exemption for investigational use; or (3) a food contact notification submitted under section 409(h) of the FD&C Act is effective. Food additive petitions (FAPs) are submitted by individuals or companies to obtain approval of a new food additive or to amend the conditions of use permitted under an existing food additive regulation. Section 171.1 of FDA's regulations (21 CFR 171.1) specifies the information that a petitioner must submit in order to establish that the proposed use of a food additive is safe and to secure the publication of a food additive regulation describing the conditions under which the additive may be safely used. Parts 172, 173, 179, and 180 (21 CFR parts 172, 173, 179, and 180) contain labeling requirements for certain food additives to ensure their safe use.
Section 721(a) of the FD&C Act (21 U.S.C. 379e(a)) provides that a color additive shall be deemed to be unsafe unless the additive and its use are in conformity with a regulation that describes the condition(s) under which the additive may safely be used, or the additive and its use conform to the terms of an exemption for investigational use issued under section 721(f) of the FD&C Act. Color additive petitions (CAPs) are submitted by individuals or companies to obtain approval of a new color additive or a change in the conditions of use permitted for a color additive that is already approved. Section 71.1 of the agency's regulations (21 CFR 71.1) specifies the information that a
FDA scientific personnel review FAPs to ensure the safety of the intended use of the additive in or on food or that may be present in food as a result of its use in articles that contact food. Likewise, FDA personnel review color additive petitions to ensure the safety of the color additive prior to its use in food, drugs, cosmetics, or medical devices.
Under section 201(s) of the FD&C Act (21 U.S.C. 321(s)), a substance is Generally Recognized as Safe (GRAS) if it is generally recognized among experts qualified by scientific training and experience to evaluate its safety, to be safe through either scientific procedures or common use in food. The FD&C Act historically has been interpreted to permit food manufacturers to make their own initial determination that use of a substance in food is GRAS and thereafter seek affirmation of GRAS status from FDA. FDA reviews petitions for affirmation of GRAS status that are submitted on a voluntary basis by the food industry and other interested parties under authority of sections 201, 402, 409, and 701 of the FD&C Act (21 U.S.C. 321, 342, 348, and 371). To implement the GRAS provisions of the act, FDA has set forth procedures for the GRAS affirmation petition process in § 170.35(c)(1) of its regulations (21 CFR 170.35(c)(1)). While the GRAS affirmation petition process still exists, FDA has not received a GRAS affirmation petition since the establishment of the voluntary GRAS notification program and is not expecting any during the period covered by this proposed extension of collection of information.
Currently, interested persons may transmit regulatory submissions to the Office of Food Additive Safety in the Center for Food Safety and Applied Nutrition using Form FDA 3503 for FAP and Form FDA 3504 for CAP. FDA is revising Form FDA 3503 to better enable its use for electronic submission and to permit its use for multiple types of submissions, which eliminates the need for Form FDA 3504. Because Form FDA 3503 helps the respondent organize their submission to focus on the information needed for FDA's safety review, FDA now recommends that this form be used for FAPs and CAPs, whether submitted in electronic format or paper format. FDA estimates that the amount of time for respondents to complete the revised FDA Form 3503 will continue to be 1 hour. The revised Form FDA 3503 can be used to submit information to FDA in electronic format using the Electronic Submission Gateway portal. The revised Form FDA 3503 can be used to substitute for the “Dear Sir” section of 21 CFR 71.1(c) for a CAP and 21 CFR 171.1(c) for a FAP. The revised Form FDA 3503 provides for submitters to indicate the date of their most recent presubmission consultation activity with FDA. The revised Form FDA 3503 can also be used to organize information within a Master File submitted in support of petitions according to the items listed on the form. Master Files can be used as repositories for information that can be referenced in multiple submissions to the Agency, thus minimizing paperwork burden for food and color additive approvals. The revised Form FDA 3503 is formatted to accept submissions for both FAP and CAP, thus making redundant Form FDA 3504 for collecting CAP submissions. Therefore, FDA is eliminating Form FDA 3504.
In the
FDA estimates the burden of this collection of information as follows:
The estimate of burden for food additive, color additive, or GRAS affirmation petitions is based on FDA's experience and the average number of new petitions received in calendar years 2006, 2007, 2008, and 2009, and the total hours expended in preparing the petitions. In compiling these estimates, FDA consulted its records of the number of petitions received in the past 4 years. The figures for “Hours per Response” are based on estimates from experienced persons in the Agency and in industry. Although the estimated hour burden varies with the type of petition submitted, an average petition involves analytical work and appropriate toxicological studies, as well as the work of drafting the petition itself. The burden varies depending on the complexity of the petition, including the amount and types of data needed for scientific analysis.
Color additives are subjected to payment of fees for the petitioning process. The listing fee for a color additive petition ranges from $1,600 to
The labeling requirements for food and color additives were designed to specify the minimum information needed for labeling in order that food and color manufacturers may comply with all applicable provisions of the FD&C Act and other specific labeling acts administered by FDA. Label information does not require any additional information gathering beyond what is already required to assure conformance with all specifications and limitations in any given food or color additive regulation. Label information does not have any specific recordkeeping requirements unique to preparing the label. Therefore, because labeling requirements under § 70.25 for a particular color additive involve information required as part of the CAP safety review process, the estimate for number of respondents is the same for §§ 70.25 and 71.1, and the burden hours for labeling are included in the estimate for § 71.1. Also, because labeling requirements under parts 172, 173, 179, and 180 for particular food additives involve information required as part of the FAP safety review process under § 171.1, the burden hours for labeling are included in the estimate for § 171.1.
This announcement seeks proposals for grants to provide nutritional and supportive services to Indian elders and Alaskan Natives under Part A; Native Hawaiian elders under Part B; and Family Caregiver support services under Part C of the OAA. The goal of these programs is to increase home and community-based services to older Indians, Alaskan Natives and Native Hawaiians, that respond to local needs and are consistent with evidence-based practices. A detailed description of the funding opportunity may be found at
Grant.
The Administration on Aging (AoA) will accept applications for funding for a three-year project period, April 1, 2011 to March 31, 2014, in FY 2011 under the OAA, Title VI, Part A: Grants for Native Americans; Part B: Grants for Native Hawaiian Programs; and Part C: Grants for the Native American Caregiver Support Program. Current annual funding levels for Title VI, Part A and Part B range from $76,160 to $186,000. Current annual funding levels for Title VI, Part C range from $14,410 to $57,680. Distribution of funds among tribal organizations and Native Hawaiian organizations is subject to the availability of appropriations to carry out Title VI. Funding is based on the number of eligible elders age 60 and older in your proposed service area. Successful applications from current grantees will receive priority consideration. Successful applications from new applicants will be funded pending the availability of funds or at the discretion of the Assistant Secretary for Aging. For those applying for Title VI, Parts A or B funding you have the option to also apply for Part C. However, to apply for Part C, you must apply for both Part A and Part C or Part B and Part C.
Eligibility for grant awards is limited to all current Title VI, Part A and Part B grantees; current grantees who wish to leave a consortium; and eligible federally recognized Indian tribal organizations that are not now participating in Title VI and would like to apply as a new grantee. Those tribes who were a part of a consortium receiving a Title VI grant in 1991 and applying individually will be considered a “current grantee.” Proof of being a part of a consortium that was funded in FY 1991 must be submitted as part of the application. A tribal organization or Indian tribe must meet the application requirements contained in sections 612(a), 612(b), and 612(c) of the OAA and 45 CFR 1326.19. A public or nonprofit private organization serving Native Hawaiians must meet the application requirements contained in sections 622(1), 622(2), and 625 of the OAA and 45 CFR 1328.19. Under the Native American Caregiver Support Program, a tribal or Native Hawaiian organization must meet the requirements as contained in section 631 of the OAA. These sections are described in the application kit.
Cost Sharing or matching does not apply to these grants.
All grant applicants must obtain a D–U–N–S number from Dun and Bradstreet. It is a nine-digit identification number, which provides unique identifiers of single business entities. The D–U–N–S number is free and easy to obtain from
Executive Order 12372, Intergovernmental Review of Federal
Application kits are available by writing to the U.S. Department of Health and Human Services, Administration on Aging, Office for American Indian, Alaskan Native, and Native Hawaiian Programs, Washington, DC 20001; by calling Cecelia Aldridge, telephone: (202) 357–3422; or
An original and complete application must include all attachments and be signed by the principal official of the tribe.
Applicants are encouraged to submit applications electronically via e-mail to
If sending via overnight delivery service, applications must be submitted to the U.S. Department of Health and Human Services, Administration on Aging, Office of Grants Management, One Massachusetts Ave., NW., Room 4714, Washington, DC 20001, attn: Yi-Hsin Yan.
Faxed applications will not be accepted.
To receive consideration, applications must be received electronically by 11:59 p.m. EST on November 30, 2010, or postmarked by the overnight delivery service no later than November 30, 2010. If AoA's
Each application submitted will be screened to determine whether it was received by the closing date and time. In addition, applications received by the closing date and time will be screened for completeness and conformity with the requirements outlined in Sections III and IV of this Notice and the Program Announcement. Only completed and signed applications that meet these requirements will be considered for funding.
Not Applicable
For further information/questions regarding your application, contact M. Yvonne Jackson, Ph.D., U.S. Department of Health and Human Services, Administration on Aging, Office for American Indian, Alaskan Native, and Native Hawaiian Programs, One Massachusetts Avenue, NW., Room 5013, Washington, DC 20001; telephone (202) 357–3501; fax (202) 357–3560; e-mail
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Food and Drug Administration, HHS.
Notice of intent to provide supplemental funding to the existing cooperative agreement (U18), PAR–09–215, with the Food and Drug Administration and a request for supplemental applications.
The Food and Drug Administration (FDA) is announcing the availability of supplemental grant funds for the support of Food Emergency Response Laboratory Network (FERN) Microbiological Laboratories. The goal of these FERN Microbiological Laboratories supplements is a minor program expansion to enhance the lab capabilities to handle human pathogenic bacteria in animal feed.
Important dates are as follows:
1. The supplemental application due date is August 30, 2010.
2. The anticipated start date is September 2010.
3. The opening date is August 30, 2010.
4. The expiration date is September 6, 2010.
Tim McGrath, Office of Regulatory Affairs, Food and Drug Administration, 5600 Fishers Lane, rm. 12–41, Rockville, MD 20857, 301–827–1028, email:
For more information on the original funding opportunity announcement (FOA) for the FERN Microbiological Laboratories, please refer to the full FOA located at
This
These supplemental grant funds will also be utilized to enhance animal feed analysis results through the usage of standardized methods, equipment platforms (provided by the grant), analytical worksheets, and electronic reporting. The supplemental funds will also provide training and proficiency testing for each method/platform. Minimal quality management systems will be initiated for each lab, based on existing systems in place in each lab and consultations between the FERN NPO and each lab management group.
Each laboratory shall develop its own consensus decisionmaking, size, and format. Federal agency representatives may be invited to be nonmember liaisons or advisors to the laboratory and its meetings. Supplemental funds may not be used for Federal employees to travel to or participate in these meetings.
Selected FDA FERN Microbiological Cooperative Agreement Laboratories (CAP labs) will participate in a special Cooperative Agreement program to enhance their ability to handle human pathogenic bacteria in animal feed. This additional program will be compatible with other FERN Cooperative Agreement work that the selected laboratories will be performing. This special program will involve screening and detection studies for selected pathogens (
These supplemental grant funds are only available to existing grant recipients from State, local, and tribal government FERN laboratories and are authorized by section 312 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Public Law 107–188) (42 U.S.C. 247b-20). This program is described in the Catalog of Federal Assistance under number 93.448. All projects developed with these funds at State, local, and tribal levels must have national implication or application that can enhance Federal food and feed safety and security programs.
Laboratories will be selected based on the following criteria:
• If it's an existing FDA FERN Microbiological Cooperative Agreement Laboratory;
• If it has routine microbiological capabilities as demonstrated through established, ongoing State testing programs, preferably those involving animal feed testing;
• If it participates in FERN Food Safety/Food Defense surveillance assignments;
• If it participates in FERN proficiency testing; and
• If it has a geographically balanced distribution of the selected laboratories.
FDA anticipates providing approximately $50,000 total costs (direct costs only) in support of this supplemental program in fiscal year 2010. It is estimated that up to six microbiological laboratories will be supplemented at the level requested, but not exceeding $50,000 total costs (direct costs only) for a 1-year minor program expansion.
The initial award will be for a 1-year performance period and any additional funding related to this supplement will be dependant on successful performance and fiscal appropriations.
To submit an application in response to this supplemental notice, applicants should download the PHS–398 form at
Submit the paper application to:
Agency for Healthcare Research and Quality (AHRQ), HHS.
Solicits nominations for new members of USPSTF.
The Agency for Healthcare Research and Quality (AHRQ) invites nominations of individuals qualified to serve as members of the U.S. Preventive Services Task Force (USPSTF).
The USPSTF, a standing, independent panel of non-Federal experts that makes evidence-based recommendations to the health care community and the public regarding the provision of clinical preventive services, see 42 U.S.C. 299b–4(a), is composed of members appointed to serve for four-year terms with an option for reappointment. New members are selected each year to replace approximately one fourth of the USPSTF members,
USPSTF members meet three times a year for two days in the Washington, DC area. Between meetings, member duties include reviewing and preparing comments (off site) on systematic evidence reviews prior to discussing and making recommendations on preventive services, drafting final recommendation documents, and participating in workgroups on specific topics or methods.
A diversity of perspectives is valuable to the work of the USPSTF. To help obtain a diversity of perspectives among nominees, AHRQ particularly encourages nominations of women, members of minority populations, and persons with disabilities. Interested individuals can self nominate. Organizations and individuals may nominate one or more persons qualified for membership on the USPSTF.
1. Knowledge and experience in the critical evaluation of research published in peer reviewed literature and in the methods of evidence review;
2. Understanding and experience in the application of synthesized evidence to clinical decisionmaking and/or policy;
3. Expertise in disease prevention and health promotion;
4. Ability to work collaboratively with peers; and
5. Clinical expertise in the primary health care of children and/or adults, and/or expertise in counseling and behavioral interventions for primary care patients.
Some USPSTF members without primary health care clinical experience may be selected based on their expertise in methodological issues such as medical decisionmaking, clinical epidemiology, behavioral medicine, health equity, and health economics. For individuals with clinical expertise in primary health care, additional qualifications in one or more of these areas would enhance their candidacy.
Consideration will be given to individuals who are recognized nationally for scientific leadership within their field of expertise. Applicants must have no substantial conflicts of interest, whether financial, professional, or other conflicts, that would impair the scientific integrity of the work of the USPSTF.
All nominations submitted in writing or electronically, and received by Friday, October 1, 2010, will be considered for appointment to the USPSTF.
Nominated individuals will be selected for the USPSTF on the basis of their qualifications (in particular, those that address the required qualifications, outlined above) and the current expertise needs of the USPSTF. It is anticipated that two or three individuals will be invited to serve on the USPSTF beginning in January, 2011. All individuals will be considered; however, strongest consideration will be given to individuals with demonstrated training and expertise in a specific area such as family medicine, internal medicine, obstetrics/gynecology, pediatrics, nursing, behavioral medicine, health equity or methodology. AHRQ will retain and consider for future vacancies the nominations of those not selected during this cycle.
Submit your responses either in writing or electronically to: Gloria Washington, ATTN: USPSTF Nominations, Center for Primary Care, Prevention, and Clinical Partnerships, Agency for Healthcare Research and Quality, 540 Gaither Road, Rockville, Maryland 20850,
Nominations may be submitted in writing or electronically, but must include:
(1) The applicant's current curriculum vitae and contact information, including mailing address, e-mail address, and telephone number and
(2) A letter explaining how this individual meets the qualification requirements and how he/she would contribute to the USPSTF. The letter should also attest to the nominee's willingness to serve as a member of the USPSTF.
AHRQ will later ask persons under serious consideration for membership to provide detailed information that will permit evaluation of possible significant conflicts of interest. Such information will concern matters such as financial holdings, consultancies, and research grants or contracts.
Appointments to the USPSTF will be made on the basis of qualifications as outlined above (see Qualification Requirements) and the current expertise needs of the USPSTF.
Nominations and applications are kept on file at the Center for Primary Care, Prevention, and Clinical Partnerships, AHRQ, and are available for review during business hours. AHRQ does not reply to individual nominations, but considers all nominations in selecting members. Information regarded as private and personal, such as a nominee's social security number, home and e-mail addresses, home telephone and fax numbers, or names of family members will not be disclosed to the public. This is in accord with AHRQ confidentiality policies and Department of Health and Human Services regulations (45 CFR 5.67).
Gloria Washington at
Under Title IX of the Public Health Service Act, AHRQ is charged with enhancing the quality, appropriateness, and effectiveness of health care services and access to such services. 42 U.S.C. 299(b). AHRQ accomplishes these goals through scientific research and promotion of improvements in clinical practice, including clinical prevention of diseases and other health conditions, and improvements in the organization, financing, and delivery of health care services. See 42 U.S.C. 299(b).
The USPSTF is a panel of non-Federal experts that makes independent evidence-based recommendations regarding the provision of clinical preventive services. See 42 U.S.C. 299b–4(a). The USPSTF was first established in 1984 under the auspices of the U.S. Public Health Service. Currently, the USPSTF is convened by the Director of AHRQ, and AHRQ provides ongoing administrative, research and technical support for the USPSTF's operation. The USPSTF is charged with rigorously evaluating the effectiveness and
Centers for Medicare & Medicaid Services (CMS).
Notice.
This notice announces a solicitation for up to 20 additional eligible hospitals to participate in the Rural Community Hospital Demonstration program for a 5-year period.
The applications should be mailed or sent by an overnight delivery service to the following address: Centers for Medicare & Medicaid Services, ATTN: Sid Mazumdar, Rural Community Hospital Demonstration, Medicare Demonstrations Program Group, Mail Stop C4–17–27, 7500 Security Boulevard, Baltimore, MD 21244–1850.
Please allow sufficient time for mailed information to be received in a timely manner in the event of delivery delays. Because of staffing and resource limitations, and because we require an application containing an original signature, we cannot accept applications by facsimile (Fax) transmission.
Sid Mazumdar at (410) 786–6673 or by e-mail at
Section 410A(a) of Public Law 108–173 required the Secretary to establish a demonstration program to test the feasibility and advisability of establishing cost-based reimbursement for “rural community hospitals” to furnish covered inpatient hospital services to Medicare beneficiaries. The demonstration pays rural community hospitals for such services under a cost-based methodology for Medicare payment purposes for covered inpatient hospital services furnished to Medicare beneficiaries. A rural community hospital, as defined in section 410A(f)(1) of Public Law 108–173, is a hospital that—
• Has fewer than 51 acute care inpatient beds (excluding beds in a distinct psychiatric or rehabilitation unit of the hospital) as reported in its most recent cost report;
• Provides 24-hour emergency care services; and
• Is not designated or eligible for designation as a critical access hospital under section 1820 of the Social Security Act (the Act).
Section 410A(a)(4) of Public Law 108–173 specified that the Secretary was to select for participation from among the applicants no more than 15 rural community hospitals in rural areas of States that the Secretary identified as having low population densities. Using 2002 data from the U.S. Census Bureau, we identified the 10 States with the lowest population density in which rural community hospitals were to be located in order to participate in the demonstration: Alaska, Idaho, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Utah, and Wyoming. (Source: U.S. Census Bureau, Statistical Abstract of the United States: 2003). We solicited eligible hospitals among these States in 2004 and again in 2008. There are currently 10 hospitals participating in the demonstration.
The demonstration is designed to test the feasibility and advisability of reasonable cost reimbursement for inpatient services to small rural hospitals. The demonstration is aimed at increasing the capability of the selected rural hospitals to meet the needs of their service areas.
Section 410A(a)(5) of Public Law 108–173 required a 5-year demonstration period of participation. The 5-year periods of performance for the hospitals originally selected will end by June 30, 2010. For the hospitals selected in 2008, the initial period of performance is scheduled to end on September 30, 2010. Section 10313 of the Patient Protection and Affordable Care Act (ACA), (Pub. L. 111–148) mandates an extension and expansion of the Rural Community Hospital demonstration for 5 years. In order for other hospitals to begin participation in this new demonstration for the 5-year extension period, rural community hospitals must be located among the 20 States with the lowest population density—according to the same criteria and data as the original demonstration. These States are: Alaska, Arizona, Arkansas, Colorado, Idaho, Iowa, Kansas, Maine, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, and Wyoming. (Source: U.S. Census Bureau, Statistical Abstract of the United States: 2003). The statute States that no more than 30 rural community hospitals can participate, and that those hospitals participating in the demonstration program as of the date of the last day of the initial 5-year period will be allowed to continue in the program. Up to 20 additional hospitals will be able to begin participation in the demonstration.
This notice announces the solicitation for up to 20 additional hospitals to participate in the Rural Community Hospital Demonstration Program. Hospitals that enter the demonstration under this solicitation will be able to participate for 5 years.
Hospitals selected for the demonstration will be paid the reasonable costs of providing covered inpatient hospital services, with the exclusion of services furnished in a psychiatric or rehabilitation unit that is a distinct part of the hospital, using the following rules. For discharges occurring—
• In the first cost report period upon the hospital's participation in the demonstration, reasonable costs for covered inpatient services; or
• During the second or subsequent cost reporting period, the lesser of their reasonable costs or a target amount. The target amount in the second cost reporting period is defined as the reasonable costs of providing covered inpatient hospital services in the first cost reporting period, increased by the inpatient prospective payment system update factor (as defined in section 1886(b)(3)(B) of the Act) for that particular cost reporting period. The target amount in subsequent cost
Covered inpatient hospital services means inpatient hospital services (defined in section 1861(b) of the Act) and includes extended care services furnished under an agreement under section 1883 of the Act.
Section 410A of Public Law 108–173 requires that, “in conducting the demonstration program under this section, the Secretary shall ensure that the aggregate payments made by the Secretary do not exceed the amount which the Secretary would have paid if the demonstration program under this section was not implemented.” In order to achieve budget neutrality for this demonstration program in fiscal years (FYs) 2005, 2006, 2007, 2008, 2009, and 2010, we adjusted the national IPPS rates by an amount sufficient to offset the added costs of this demonstration program. We presented an estimate of the amount to offset additional costs due to the demonstration program in FY 2011, including the costs of additional rural community hospitals, in the FY 2011 inpatient prospective payment system/long-term care hospital prospective payment system (IPPS/LTCH PPS) supplemental proposed rule (
To participate in the demonstration, a hospital must be located in one of the identified States with low-population density and meet the criteria for a rural community hospital. Eligible hospitals that desire to participate in the demonstration must properly submit a timely application. Information about the demonstration and details on how to apply can be found on the CMS Web site:
The information collection requirements contained in this notice are subject to the Paperwork Reduction Act of 1995. As discussed in section II.B. of this notice, a hospital must submit the required information on the cover sheet of the CMS Medicare Waiver Demonstration Application to receive consideration by the technical review panel. The burden associated is the time and effort necessary to complete the Medicare Waiver Application and submit the information to CMS. The burden associated with this requirement is currently approved under the Office of Management and Budget control number 0938–0880 with an expiration date of November 20, 2010.
Section 10313 of the Patient Protection and Affordable Care Act (Pub. L. 111–148)
Transportation Security Administration, DHS.
60 day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0027, abstracted below that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves applicant submission of biometric and biographic information for TSA's security threat assessment in order to obtain the hazardous materials endorsement (HME) on a commercial drivers license (CDL) issued by the U.S. States and the District of Columbia.
Send your comments by October 29, 2010.
Comments may be e-mailed to
Joanna Johnson at the above address, or by telephone (571) 227–3651.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
These changes should reduce the burden on applicants, States, and TSA. By receiving this information during the application process, requests for additional information or documentation will be reduced during the post-adjudication process.
From 2011 through 2013, TSA estimates respondent drivers will spend approximately 2.9 million hours on the application and background check process. TSA estimates an annualized 300,000 respondents will apply for an HME, and that the application and background check process will involve 975,000 annualized hours. TSA estimates the total costs to respondent drivers will be $80.3 million over the three-year period ($27 million annualized).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Texas (FEMA–3313–EM), dated June 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that the incident period for this emergency is closed effective August 14, 2010.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Iowa (FEMA–1930–DR), dated July 29, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the State of Iowa is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of July 29, 2010.
Calhoun, Clarke, Dallas, Keokuk, and Washington Counties for Public Assistance.
Hamilton and Ida Counties for Public Assistance (already designated for Individual Assistance).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA–1931–DR), dated
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that the incident period for this disaster is closed effective August 14, 2010.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA–1931–DR), dated August 3, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 3, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Illinois (FEMA–1935–DR), dated August 19, 2010, and related determinations.
Effective Date: August 19, 2010.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated August 19, 2010, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Illinois resulting from severe storms and flooding during the period of July 22 to August 7, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Gregory W. Eaton, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Illinois have been designated as adversely affected by this major disaster:
Carroll, Cook, DuPage, Jo Daviess, Ogle, Stephenson, and Winnebago Counties for Individual Assistance.
All counties within the State of Illinois are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA–1934–DR), dated August 17, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886.
Notice is hereby given that, in a letter dated August 17, 2010, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Missouri resulting from severe storms, flooding, and tornadoes during the period of June 12 to July 31, 2010, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the “Stafford Act”). Therefore, I declare that such a major disaster exists in the State of Missouri.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Jose M. Girot, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Missouri have been designated as adversely affected by this major disaster:
Adair, Andrew, Atchison, Buchanan, Caldwell, Carroll, Cass, Chariton, Clark, Clinton, Daviess, DeKalb, Gentry, Grundy, Harrison, Holt, Howard, Jackson, Lafayette, Lewis, Livingston, Mercer, Nodaway, Putnam, Ray, Schuyler, Scotland, Sullivan, and Worth Counties for Public Assistance.
All counties within the State of Missouri are eligible to apply for assistance under the Hazard Mitigation Grant Program.
U.S. Department of the Interior.
Notice; request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary of the Department of the Interior announces the proposed revision of an information collection “Klamath Non-use Valuation Survey,” Office of Management and Budget (OMB) Control No. 1090–0010, and that it is seeking comments on its provisions. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this information collection.
You may submit your comments directly to the Desk Officer for the Department of the Interior (OMB 1090–0010), Office of Information and Regulatory Affairs, OMB, by electronic mail at
OMB has 60 days to review this request but may act after 30 days, therefore you should submit your comments on or before September 29, 2010.
Benjamin Simon, Economics Staff Director, Office of Policy Analysis, U.S. Department of the Interior telephone at 202–208–5978 or by e-mail at
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d)). This notice identifies an information collection activity that the Office of the Secretary will submit to OMB for revision.
The Klamath River provides habitat for fall and spring run Chinook salmon (
In November 2008 the U.S. Government, the States of Oregon and California, and the utility company PacifiCorp signed an agreement in principle (AIP) to remove four hydroelectric dams on the Klamath River by 2020. Dam removal is being considered a viable alternative to volitional fish passage (ladders and screens), which was being considered by the Federal Energy Regulatory Commission (FERC) as a condition for relicensing of PacifiCorp's hydroelectric project. Parties to the AIP are working with stakeholders (including tribes, fishers, farmers, conservation groups, and local governments) to reach a final agreement that would result in the largest dam removal project in U.S. history. If achieved, this agreement will be part of a comprehensive solution to species recovery, water allocation, and water quality problems in the Klamath Basin.
In October 2011 the Secretary of the Interior is expected to make a final determination regarding dam removal, contingent on results of an economic analysis that will address benefits, costs, and distributional effects of dam removal relative to volitional fish passage. Dam removal is expected to have positive long-term effects on the viability of fish populations and other aspects of the Klamath Basin ecosystem. Benefits of these environmental improvements include “non-use values,” which accrue to members of the public who value such improvements regardless of whether they ever consume Klamath fish or visit the Klamath Basin. An information collection is planned in order to implement a state-of-the-art non-use valuation survey of the U.S. public that addresses the incremental environmental improvements of dam removal relative to volitional fish passage. This data collection is intended to address one component of an economic analysis that will include all costs and benefits of dam removal relative to volitional fish passage.
The second wave of mailings will be to the remaining 90% of the households. 17% of households are estimated to respond, which will take 30 minutes. Non-respondents will take 3 minutes. The second phase will be sent to the remaining 83% of non-respondent households. 10% of the households are estimated to respond to the second mailing, taking 30 minutes. The second group of non-respondents are estimated to spend 3 minutes.
The remaining non-respondents from the second mailings will be split into two groups in a 80/20 split. It is assumed that 65% of the non-respondent households will have a phone number. Both groups will be sent another copy of the survey. For the households with a phone number, a non response bias call will be made, taking an estimated 2 to 5 minutes.
On June 9, 2009, we published in the
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the collection and the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or prove information to or for a Federal agency.
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 Office of Management and Budget control number.
Fish and Wildlife Service, Interior.
Notice of receipt of applications; request for public comment.
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under the Endangered Species Act of 1973, as amended (Act). The Act requires that we invite public comment on these permit applications.
To ensure consideration, written comments must be received on or before September 29, 2010.
Written comments should be submitted to the Chief, Endangered Species Division, Ecological Services, P.O. Box 1306, Room 6034, Albuquerque, NM 87103. Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act. Documents will be available for public inspection, by appointment only, during normal business hours at the U.S. Fish and Wildlife Service, 500 Gold Ave., SW., Room 6034, Albuquerque, NM. Please refer to the respective permit number for each application when submitting comments.
Susan Jacobsen, Chief, Endangered Species Division, P.O. Box 1306, Albuquerque, NM 87103; (505) 248–6920.
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.
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys for American burying beetle (
Applicant requests an amendment to a current permit for research and recovery purposes to conduct presence/absence surveys for Rio Grande silvery minnow (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys for lesser long-nosed bat (
Applicant requests a new permit for research and recovery purposes to obtain seeds of Welsh's milkweed (
Applicant requests an amendment to a current permit for research and recovery purposes to conduct presence/absence surveys for fountain darter (
Applicant requests a new permit for research and recovery purposes to conduct presence/absence surveys for golden-cheeked warbler (
16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) has prepared a Proposed California Desert Conservation Act Plan Amendment/Final Environmental Impact Statement (EIS) for Genesis Solar LLC's Genesis Solar Energy Project (GSEP) and by this notice is announcing its availability.
The publication of the Environmental Protection Agency's (EPA) Notice of Availability (NOA) of this Final EIS in the
Copies of the Proposed Plan Amendment/Final EIS for the GSEP have been sent to affected Federal, state, and local government agencies and to other stakeholders. Copies of the Proposed Plan Amendment/Final EIS are available for public inspection at the Palm Springs South Coast Field Office, 1201 Bird Center Drive, Palm Springs, California 92262. Interested persons may also review the document at the following Web site:
All protests must be in writing and mailed to one of the following addresses:
Allison Shaffer, BLM Project Manager, telephone (760) 833–7100; address (
Genesis Solar, LLC has submitted an application to the BLM for development of the proposed GSEP, which would consist of two independent solar electric generating facilities with a nominal net electrical output of 125 megawatts (MW) each, resulting in a total net electrical output of 250 MW. The Proposed Action would be designed to utilize solar parabolic trough technology to generate electricity.
Genesis Solar, LLC is seeking a right-of-way (ROW) grant for approximately 4,640 acres of land. Construction and operation of the Proposed Action would disturb a total of about 1,800 acres within the site boundaries, and approximately 90 acres for linear facilities and drainage features outside the site boundaries.
The proposed GSEP would be approximately 27 miles east of the unincorporated community of Desert Center and 25 miles west of the Arizona-California border city of Blythe in Riverside County, California.
The Applicant proposes to construct the GSEP in two phases, which would
The overall site layout and generalized land uses are characterized as follows:
1. 250-MW facility including solar generation facilities; on-site switchyard (substation); administration, operations, and maintenance facilities: approximately 1,800 acres.
2. Two wastewater evaporation ponds: Up to 30 acres each (located within the 1,800-acre site).
3. A new generation-tie line to route generated electrical power transmitted from the GSEP switchyard by way of a southeasterly ROW, that would connect to the Southern California Edison 500–230 kV Colorado River substation via the existing Blythe Energy Project Transmission Line between the Julian Hinds and Buck substations.
4. Additional linear facilities off-site, including a 6.5-mile access road and natural gas pipeline.
5. Surface water control facilities for storm water flow and discharge.
6. Temporary construction laydown area(s) within the larger site footprint. No additional laydown areas outside the project footprint are contemplated.
Access to the site would be via a new 6.5-mile long, 24-foot wide (approximately 18.9 acres) paved access road extending north and west from the existing Wiley's Well Road. Wiley's Well Road is accessible by both eastbound and westbound traffic off Interstate 10 at the Wiley's Well Road Interchange. The new access road would be constructed entirely on BLM-administered land.
The BLM's purpose and need for the NEPA analysis of the GSEP project is to respond to Genesis Solar, LLC's application under Title V of FLPMA (43 U.S.C. 1761) for a ROW grant to construct, operate, and decommission a solar thermal facility on public lands in compliance with FLPMA, BLM ROW regulations, and other applicable Federal laws. The BLM will decide whether to approve, approve with modification, or deny a ROW grant to Genesis Solar, LLC for the proposed GSEP project. The BLM will also consider amending the California Desert Conservation Act (CDCA) Plan of 1980, as amended, in this analysis. The CDCA Plan, while recognizing the potential compatibility of solar generation facilities on public lands, requires that all sites associated with power generation or transmission not identified in that Plan be considered through the plan amendment process. If the BLM decides to grant a ROW, the BLM would also amend the CDCA Plan.
In the Final EIS, the BLM's Preferred Alternative is the direct dry cooling project alternative with a 250 nominal MW output which includes a CDCA Plan Amendment. In addition to the Preferred Alternative, the Final EIS analyzes the following alternatives: The proposed action with a 250 nominal MW output, wet-cooling technology and an amendment the CDCA Plan to make the area suitable for solar energy development; a reduced acreage alternative which includes a 150 nominal MW output, wet cooling technology, and an amendment to the CDCA Plan to make the area suitable for solar energy development; and an amendment to the CDCA Plan without approving any project. As required under NEPA, the Final EIS analyzes a no action alternative, which would not approve the GSEP or amend the CDCA Plan. The BLM also analyzes an alternative that denies the GSEP, but amends the CDCA Plan to designate the project area as suitable for other possible solar energy power generation projects, and an alternative to deny the project and amend the CDCA Plan to designate the project area as unsuitable for solar energy power generation projects. The BLM will take into consideration the provisions of the Energy Policy Act of 2005 and Secretarial Orders 3283
The Final EIS evaluates the potential impacts of the proposed GSEP on air quality, biological resources, cultural resources, water resources, geological resources and hazards, land use, noise, paleontological resources, public health, socioeconomics, soils, traffic and transportation, visual resources, wilderness characteristics, and other resources.
A Notice of Availability of the Draft EIS/Staff Assessment for the proposed GSEP and Possible Plan Amendment to the CDCA Plan was published in the
Instructions for filing a protest with the Director of the BLM regarding the Proposed CDCA Plan Amendment may be found in the “Dear Reader” Letter of the Proposed CDCA Plan Amendment/Final EIS and at 43 CFR 1610.5–2. E-mailed and faxed protests will not be accepted as valid protests unless the protesting party also provides the original letter by either regular or overnight mail postmarked by the close of the protest period. Under these conditions, the BLM will consider the e-mail or faxed protest as an advance copy and it will receive full consideration. If you wish to provide the BLM with such advance notification, please direct faxed protests to the attention of the BLM protest coordinator at (202) 912–7212, and e-mails to
Before including your phone number, e-mail address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6 and 1506.10 and 43 CFR 1610.2 and 1610.5.
National Park Service, Interior.
Notice of availability of a final environmental impact statement for the South Florida and Caribbean Parks Exotic Plant Management Plan.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), and the Council on Environmental Quality regulations (40
In accordance with the Plant Protection Act of 2000, (7 U.S.C. 7701
The purpose of the plan/FEIS is to (1) provide a programmatic plan to manage and control exotic plants in nine parks in south Florida and the Caribbean; (2) promote restoration of native species and habitat conditions in ecosystems that have been invaded by exotic plants; and (3) protect park resources and values from adverse effects resulting from exotic plant presence and control activities.
In December 2003, the NPS met with various Federal, territorial, State, and local government agencies to share information among agencies and elicit issues, concerns, and other relevant information to address during the planning process. Agency representatives participated in meetings in the Virgin Islands, (one on St. John and one on St. Croix), and in a meeting in West Palm Beach, Florida. A Notice of Intent to prepare an environmental impact statement (EIS) for South Florida and Caribbean parks exotic plant management was published in the
Following a 60-day public comment period, NPS considered carefully the agency and public comments received, and prepared the FEIS. Not sooner than 30 days from the date of publication of the Notice of Availability for the FEIS in the
Electronic copies of the final document will be available online at
Three alternatives are identified and potential impacts analyzed in the plan/FEIS. Alternative C,
The parks would continue to treat infestations of exotic plants on an ad hoc basis using a variety of physical, mechanical, chemical, and biological methods and through currently available funding sources.
The authority for publishing this notice is 40 CFR 1506.6.
Sandra Hamilton, Environmental Quality Division, National Park Service, Academy Place, P.O. Box 25287, Denver, Colorado 80225, 303–969–2068.
The responsible official for this final EIS is the Regional Director, Southeast Region, National Park Service, 100 Alabama Street, SW., 1924 Building, Atlanta, Georgia 30303.
National Park Service, Interior.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix, that the National Park System Advisory Board will meet September 15–16, 2010, in Washington, DC. The Board will have an orientation session on the morning of September 15, and in the afternoon will tour park sites in the National Capital Region. On September 16, the Board will convene its business meeting from 8:30 a.m., to 4 p.m.
September 15–16, 2010.
For further information concerning the National Park System Advisory Board or to request to address the Board, contact Ms. Shirley Sears Smith, Office of Policy, National Park Service, 1201 I Street, NW., 12th Floor, Washington, DC 20005; telephone 202–354–3955; e-mail
On September 15, the Board will convene from 8:30 a.m. to 1:15 p.m., for an orientation session for Board members, followed by a tour of national park sites of the National Capital Region. The Board will convene its business meeting on September 16, at 8:30 a.m., and adjourn at 4 p.m. During the course of the two days, the Board expects to be addressed by Secretary of the Interior Ken Salazar and National Park Service Director Jonathan Jarvis, and will be briefed by park officials on matters including education, science, funding, and public engagement. Other officials of the Department of the Interior and the National Park Service may address the Board, and other miscellaneous topics and reports may be covered.
The Board meeting will be open to the public. The order of the agenda may be changed, if necessary, to accommodate travel schedules or for other reasons. Space and facilities to accommodate the public are limited and attendees will be accommodated on a first-come basis. Anyone may file with the Board a written statement concerning matters to be discussed. The Board also will permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time. Before including your address, telephone 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.
Draft minutes of the meeting will be available for public inspection about 12 weeks after the meeting, at 1201 I Street, NW., Washington, DC 20005.
In conducting the Rim of the Valley Corridor Special Resource Study, the NPS will evaluate the national significance of the area's natural and cultural resources. The NPS will also assess the area's suitability and feasibility to be a unit of the National Park System. Factors which the NPS study team will evaluate include: Whether the study area includes types or quality of resources not already adequately represented in the National Park System; whether long-term protection and public use of the area are feasible; and whether the area can be adequately protected and administered at a reasonable cost. The recommendations of the NPS may vary for different portions of the study area.
The authorizing statute directs the NPS to determine the suitability and feasibility of designating all or a portion of the corridor as a unit of the Santa Monica Mountains National Recreation Area. It also directs the NPS to determine the methods and means for the protection and interpretation of this corridor by the NPS, other Federal, State, or local government entities or private or non-profit organizations.
The NPS will also consider: Alternative strategies for management, protection and use of significant resources within the overall study area, including management by other public agencies or the private sector; technical or financial assistance available from established programs or special initiatives and partnerships; alternative designations other than a national park, or as an expansion unit of Santa Monica Mountains National Recreation Area; and cooperative management by NPS and other entities.
The public scoping period for the Rim of the Valley Corridor Special Resource Study will conclude—and all comments must be postmarked or transmitted no later than—October 29, 2010. Interested individuals, organizations, and agencies wishing to provide written comments on issues or concerns should respond to: National Park Service, Rim of the Valley Corridor Special Resource Study, 570 West Avenue 26, Suite 175, Los Angeles, CA 90065. Comments may also be transmitted through the study's Web site listed below.
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.
At this time the following scoping meetings (public workshops) have been scheduled: September 14 in Chatsworth, September 15 in Los Angeles, September 21 in Santa Clarita, September 22 in Thousand Oaks, October 4 in Calabasas, October 5 in Tujunga, and October 6 in Altadena. Complete details of dates, times and locations of the meetings will be posted on the project Web site (noted below). Complete information will also be conveyed to local and regional press media, and will be advertised in a newsletter which will be distributed to stakeholders and interested parties.
Information updates about the study process and opportunities for the public to participate will be distributed via direct mailings, regional and local news media and the Rim of the Valley Corridor Special Resource Study Web site (
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. Both laws requires that we invite public comment before issuing these permits.
We must receive requests for documents or comments on or before September 29, 2010. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358-2280; or e-mail
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, the Endangered Species Act of 1973, section 10(a)(1)(A), as amended (16 U.S.C. 1531
The applicant requests a permit to export two captive-hatched Chinese alligators (
The applicant requests a permit to import seven captive-born tigers (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
The following applicant requests a permit to re-export a sport-hunted trophy of one male bontebok (
The applicant requests amendment and renewal of the permit to take wild and captive-held Florida manatees (
The applicant requests a permit to import biological samples of polar bears (
Concurrent with publishing this notice in the
Bureau of Land Management, Interior.
Notice of temporary closures and restrictions.
Notice is hereby given that under the authority of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, the Bureau of Land Management (BLM) Winnemucca District, Black Rock Field Office will implement and enforce the following temporary closures and restrictions to protect public safety and resources on public lands within and adjacent to the Burning Man Festival on the Black Rock Desert playa.
The temporary restrictions will be in effect until September 17, 2010.
Gene Seidlitz, District Manager, Bureau of Land Management, Winnemucca District, 5100 E. Winnemucca Boulevard, Winnemucca, NV 89445–2921, telephone: (775) 623–1500, e-mail:
These temporary restrictions affect public lands on and adjacent to the Burning Man Event conducted on the Black Rock Desert playa within the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area in portions of Humboldt, Pershing and Washoe counties, Nevada. The legal description of the affected public lands is:
The event area comprises 3,347 acres, more or less.
The public closure area comprises 9,445 acres, more or less.
The closure and temporary restrictions are necessary to provide a safe environment for the participants of the Burning Man Festival and to members of the public visiting the Black Rock Desert and to protect public land resources by addressing law enforcement and public safety concerns associated with the Burning Man Festival. The Burning Man Festival is held on public lands administered by the Bureau of Land Management. It is expected to attract approximately 48,000 participants to a remote rural area, far from urban infrastructure and support, including law enforcement, public safety, transportation, and communication services. During the festival the associated city becomes the tenth largest metropolitan area in Nevada. This event is authorized on public lands under Special Recreation Permit #NV–025–06–01.
The vast majority of Burning Man Festival participants do not cause any problems for the event organizers or the BLM. Actions by a few participants at previous events have resulted in law enforcement and public safety incidents similar to those observed in urban areas of similar size. Incidents that have required BLM law enforcement action in prior years include the following: Aircraft crashes; motor vehicle accidents with injuries within and outside the event (a temporary fence is installed around the event perimeter); fighting; sexual assaults; assaults on law enforcement officers; reckless or threatening behavior; crimes against property; crowd control issues; issues associated with possession and use of alcoholic beverages; persons acting in a manner where they may pose a danger to themselves or to others; possession, use, and distribution of controlled substances; and increased use of public lands outside the event perimeter.
The Burning Man Festival takes place within Pershing County, a rural county with a small population and a small Sheriff's Department. The county has
A temporary closure and restriction order, under the authority of 43 CFR 8364.1, is used because it is more appropriate than establishing Supplementary Rules. A temporary closure and restriction order is specifically tailored to the time frame and restrictions on uses or activities that are necessary to provide a safe environment for the public and for participants in the Burning Man Festival, and protect public land resources, while avoiding imposing restrictions that may not be necessary during the remainder of the year.
The BLM will post information signs about the temporary restrictions at main entry points around the area. This temporary restriction order also will be posted in the BLM Winnemucca District Office. Maps of the affected area and other documents associated with these temporary restrictions are available at the Winnemucca District Office at the address above.
Under the authority of Section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733 (a)), 43 CFR 8360.0–7, and 43 CFR 8364.1, the BLM will enforce the following closures and restrictions within and adjacent to the Burning Man Festival on the Black Rock Desert playa:
The event area is closed to aircraft landing, taking off, or taxiing. Aircraft is defined in Title 18 U.S.C., section 31 (a)(1) and includes lighter-than-air craft and ultra-light craft. The following exceptions apply:
1. Aircraft operations conducted through the authorized event landing strip and such ultra-light and helicopter take-off and landing areas designated for Burning Man event staff and participants, law enforcement, and emergency medical services.
2. Helicopters providing emergency medical services may land in other locations when required for medical incidents.
3. Landings or take-offs of lighter-than-air craft previously approved by the BLM authorized officer.
1. Possession of an open container of an alcoholic beverage by the driver or operator of any motorized vehicle, whether or not the vehicle is in motion is prohibited.
2. Possession of alcohol by minors.
(a) The following are prohibited:
(1) Consumption or possession of any alcoholic beverage by a person under 21 years of age on public lands.
(2) Selling, offering to sell, or otherwise furnishing or supplying any alcoholic beverage to a person under 21 years of age on public lands.
(b) This section does not apply to the selling, handling, serving or transporting of alcoholic beverages by a person in the course of his lawful employment by a licensed manufacturer, wholesaler or retailer of alcoholic beverages.
3. Operation of a motor vehicle while under the influence.
(a) Title 43 CFR 8341.1(f)3 prohibits the operation of an off-road motor vehicle on public land while under the influence of alcohol, narcotics, or dangerous drugs.
(b) In addition to the prohibition found in 43 CFR 8341.1(f)3, it is prohibited for any person to operate or be in actual physical control of a motor vehicle while:
(1) The operator is under the combined influence of alcohol, a drug, or drugs to a degree that renders the operator incapable of safe operation of that vehicle; or
(2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath.
(c) Tests:
(1) At the request or direction of any law enforcement officer authorized by the Department of the Interior to enforce this closure and restriction order, who has probable cause to believe that an operator of a motor vehicle has violated a provision of paragraph (a) or (b) of this section, the operator shall submit to one or more tests of the blood, breath, saliva, or urine for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d) Presumptive levels:
(1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a) of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (b)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.
(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, a drug or multiple drugs, or any combination thereof.
4. Definitions:
(a) Open container: Any bottle, can, or other container that contains an alcoholic beverage, if that container does not have a closed top or the lid for which the seal has been broken. If a container has been opened one or more times and its lid or top has been replaced, that container is an open container.
(b) Possession of an open container includes any open container that is physically possessed by a driver or operator and is adjacent to and reachable by that driver or operator. This includes but is not limited to containers in a cup holder or rack adjacent to the driver or operator, containers on a vehicle floor next to the driver or operator, and containers on a seat or console area next to a driver or operator.
1. The possession of drug paraphernalia is prohibited.
2. Definition: Drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of any state or Federal law, or regulation issued pursuant to law.
1. Disorderly conduct is prohibited.
2. Definition: Disorderly conduct means that an individual, with the intent of recklessly causing public
(a) Engages in fighting or violent behavior.
(b) Uses language, an utterance or gesture, or engages in a display or act that is physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.
1. The event area is closed to any person for the following:
(a) Has been evicted from the event by the permit holder, Black Rock City LLC, (BRC LLC), whether or not the eviction was requested by the BLM.
(b) Has been ordered by a BLM law enforcement officer to leave the area of the permitted event.
2. Any person evicted from the event forfeits all privileges to be present within the perimeter fence or anywhere else within the event area even if they possess a ticket to attend the event.
The ignition of fires on the surface of the Black Rock Playa without a burn blanket or burn pan is prohibited.
The use, sale or possession of personal fireworks is prohibited except for uses of fireworks approved by BRC LLC and used as part of a Burning Man sanctioned art burn event.
1. The event area is closed to motor vehicle use, except as provided below.
Motor vehicles may be operated within the Event Area under these circumstances:
(a) Participant arrival and departure on designated routes;
(b) Vehicles operated by BRC LLC staff or contractors and service providers on behalf of BRC LLC. During the event, from 12:01 a.m. Monday, August 30, 2010, through 11:59 p.m. Monday, September 6, 2010, these vehicles must display evidence of event registration at all times in such manner that it is visible from the rear of the vehicle while the vehicle is in motion;
(c) BLM, medical, law enforcement, and firefighting vehicles;
(d) Mutant vehicles, art cars, vehicles used by disabled drivers and displaying disabled driver license plates or placards, or other vehicles registered with the Burning Man event organizers and operated within the scope of that registration. Prior to commencement of the event and official issuance of registration documents, such vehicles may be operated for arrival, testing and demonstration purposes only. During the event, from 12:01 a.m. Monday, August 30, 2010, through 11:59 p.m. Monday, September 6, 2010, such vehicles must display evidence of registration at all times in such manner that it is visible from the rear of the vehicle while the vehicle is in motion;
(e) Motorized skateboards or Go-Peds with or without handlebars.
2. Definitions:
(a) A motor vehicle is any device designed for and capable of travel over land and which is self-propelled by a motor, but does not include any vehicle operated on rails or any motorized wheelchair;
(b) Motorized wheelchair means a self-propelled wheeled device, designed solely for and used by a mobility-impaired person for locomotion.
The event area is closed to public camping with the following exception: Burning Man event ticket holders who are camped in designated areas provided by BRC LLC, and ticket holders who are camped in the authorized “pilot camp.” BRC LLC authorized staff, contractors, and BLM-authorized event management-related camps are exempt from this closure.
The event area is closed to use by members of the public unless that person: Possesses a valid ticket to attend the event; is an employee or authorized volunteer with the BLM, a law enforcement agency, emergency medical service provider, fire protection provider, or another public agency working at the event and the employee is assigned to the event; is a person working at or attending the event on behalf of the event organizers, BRC LLC; or is authorized by BRC LLC to be onsite prior to the commencement of the event for the primary purpose of constructing, creating, designing or installing art, displays, buildings, facilities or other items and structures in connection with the event.
The dumping or discharge to the ground of grey water is prohibited. Grey water is water that has been used for cooking, washing, dishwashing, or bathing and contains soap, detergent, food scraps, or food residue.
1. The possession of any weapon is prohibited.
2. The discharge of any weapon is prohibited.
3. The prohibitions above shall not apply to county, state, tribal, and Federal law enforcement personnel, or any person authorized by Federal law to possess a weapon. “Art projects” that include weapons and are sanctioned by BRC LLC will be permitted after obtaining authorization from the BLM authorized officer.
4. Definitions:
(a) Weapon means a firearm, compressed gas or spring powered pistol or rifle, bow and arrow, cross bow, blowgun, spear gun, hand thrown spear, sling shot, irritant gas device, electric stunning or immobilization device, explosive device, any implement designed to expel a projectile, switch blade knife, any blade which is greater than 10 inches in length from the tip of the blade to the edge of the hilt or finger guard nearest the blade (e.g., swords, dirks, daggers, machetes), or any other weapon the possession of which is prohibited by state law. Exception: The regulation does not apply in a kitchen or cooking environment or where an event worker is wearing or utilizing a construction knife for their duties at the event
(b) Firearm means any pistol, revolver, rifle, shotgun, or other device which is designed to, or may be readily converted to expel a projectile by the ignition of a propellant.
(c) Discharge means the expelling of a projectile from a weapon.
The Public Closure area is closed to public camping.
Discharge of weapons as defined in paragraph (L)(2) of Section (I) is prohibited.
The public closure area is closed to aircraft landing, taking off, or taxiing except as described in paragraph (A) of Section I.
Disorderly conduct as defined in paragraph (D)(2) of Section I is prohibited.
(a) The Public Closure Area is closed to any person who:
(1) Has been evicted from the event by the permit holder, BRC LLC, whether or
(2) Has been ordered by a BLM law enforcement officer to leave the area of the permitted event.
(b) Any person evicted from the event forfeits all privileges to be present within the public closure area even if he or she possesses a ticket to attend the event.
The use, sale or possession of personal fireworks is prohibited.
Public use is prohibited, except for:
(a) passage through, without stopping, the public closure area on the West or East Playa Roads; and
(b) pedestrians with Burning Man tickets outside the fence.
The public closure area is closed to motor vehicle use, except for passage through, without stopping, the public closure area on the West or East Playa Roads. Motor vehicle is defined in paragraph (H)(2) of Section (I).
The dumping or discharge to the ground of grey water is prohibited. Grey water is water used for cooking, washing, dishwashing, or bathing and contains soap, detergent, food scraps, or food residue.
The possession of any weapon as defined in paragraph (L)(4) of Section (I) is prohibited except weapons within motor vehicles passing through the closure area, without stopping on the West or East Playa Roads.
Any person who violates the above rules and restrictions may be tried before a United States Magistrate and fined no more than $1,000, imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for at 18 U.S.C. 3571.
43 CFR 8364.1.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Marilyn R. Abbott, Secretary to the Commission, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of Chimei-Innolux Corporation, Chimei Optoelectronics USA, Inc. and Innolux Corporation on August 24, 2010. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain liquid crystal display devices and products interoperable with the same. The complaint names as respondents Sony Corporation of Tokyo, Japan; Sony Corporation of America of New York, NY; Sony Electronics Corporation of San Diego, CA; and Sony Computer Entertainment America, LLC of Foster City, CA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2751”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the Commission has issued a revised Users' Manual for its program for the mediation of investigations under section 337 of the Tariff Act of 1930.
James Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3065. General information concerning the Commission may also be obtained by accessing its Internet server at
On November 8, 2008, the Commission published notice that it had approved the initiation of a voluntary pilot mediation program for investigations under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”). 73 FR 65615 (Nov. 8, 2008).
The Commission has determined to issue a revised Users' Manual for its program for the mediation of investigations under section 337 of the Tariff Act of 1930. The revised Users' Manual reaffirms the authority of administrative law judges and the Commission under the Administrative Procedure Act to require attendance at a settlement conference, including the use of alternative dispute resolution; reaffirms the confidential nature of mediation proceedings; provides that parties will receive materials regarding the program upon the filing of a complaint and certify receipt and reading/discussion thereof; and provides that the Commission will maintain an open list of private mediators in addition to the roster of pre-screened pro-bono mediators.
The authority for the Commission's determination is contained in the Administrative Procedure Act, as amended,
By order of the Commission.
60-Day Notice of Information Collection Under Review: Application for Tax Paid Transfer and Registration of Firearm.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until October 29, 2010. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gary Schaible, National Firearms Act Branch, 244 Needy Road, Martinsburg, WV 20226.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, 2 Constitution Square, Room 2E–502, 145 N Street, NE., Washington, DC 20530.
60-Day Notice of Information Collection Under Review: Application to Register as an Importer of U.S. Munitions Import List Articles.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until October 29, 2010. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Desiree Winger, Firearms and Explosives Imports Branch, 244 Needy Road, Martinsburg, WV 25405.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, Room 2E–502, 145 N Street, NE., Washington, DC 20530.
60-Day notice of information collection under review: Application for an amended Federal firearms license.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until October 29, 2010. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia Power, Chief, Federal Firearms Licensing Center, 244 Needy Road, Martinsburg, WV 20226.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, Room 2E–502, 145 N Street, NE., Washington, DC 20530.
60-Day notice of information collection under review: Application for Federal firearms license.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until October 29, 2010. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Patricia Power, Chief, Federal Firearms Licensing Center, 244 Needy Road, Martinsburg, WV 20226.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, Room 2E–502, 145 N Street, NE, Washington, DC 20530.
Submission for OMB Review; Comment Request.
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including, among other things, a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—Mine Safety and Health Administration (MSHA), Office
The OMB is particularly interested in comments which:
(1) Evaluate 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;
(2) Evaluate the accuracy of the agency's 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 collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of the ICR, with applicable supporting documentation; including, among other things, a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–7316/Fax: 202–395–5806 (these are not toll-free numbers), E-mail:
The OMB is particularly interested in comments which:
• Evaluate whether the proposed information collection requirements are necessary for the proper performance of the Agency, including whether the information will have practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collections of information on those who are to respond including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Access to exposure and medical information enables workers and their
For additional information, see the related 60-day preclearance notice published in the
Notice.
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including, among other things, a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor—Mine Safety and Health Administration (MSHA), Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, Telephone: 202–395–4816/Fax: 202–395–5806 (these are not toll-free numbers), e-mail:
The OMB is particularly interested in comments which:
(1) Evaluate 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;
(2) Evaluate the accuracy of the agency's 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 collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
By application dated August 17, 2010, a company official requested administrative reconsideration of the affirmative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of the subject firm. The certification of eligibility was issued on July 30, 2010. The Notice of determination was published in the
The initial investigation resulted in a positive determination based on the findings that a significant proportion or number of the workers at the subject firm were totally or partially separated, or threatened with such separation, that the subject firm has shifted to a foreign country the production of articles like or directly competitive with the construction equipment produced by the workers, and that this shift of production contributed importantly to worker group separations at the subject firm.
In the request for reconsideration, the company official states that the shift abroad did not contribute importantly to worker separations at the subject firm because the article shifted required only a few workers and that once the work was shifted abroad, the workers were reassigned to other product lines. The company official further states that the separated workers have been recalled to work because the production of the other lines have increased despite the shift of production of the one line of construction equipment to the Philippines.
The Department has carefully reviewed the request for reconsideration and the existing record, and has determined that the Department will conduct further investigation to
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on February 4, 2009, applicable to workers of Chrysler, LLC, Twinsburg Stamping Plant, Twinsburg, Ohio. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of metal automotive stampings, a substantial proportion of which are shipped to an affiliated plant where they are used in the assembly of automotive vehicles.
New information shows that workers leased from Syncreon were employed on-site at the Twinsburg, Ohio location of Chrysler, LLC, Twinsburg Stamping Plant. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers. Based on these findings, the Department is amending this certification to include workers leased from Syncreon working on-site at the Twinsburg, Ohio location of Chrysler, LLC, Twinsburg Stamping Plant.
The amended notice applicable to TA–W–64,619 is hereby issued as follows:
All workers of Chrysler, LLC, Twinsburg Stamping Plant, including on-site leased workers from Caravan Knight Facilities Management LLC, Wackenhut Security, CR Associates, and Syncreon, Twinsburg, Ohio, who became totally or partially separated from employment on or after December 2, 2007, through February 4, 2011, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on January 12, 2009, applicable to workers of Chrysler, LLC, Detroit Axle Plant, Detroit, Michigan. The notice was published in the
At the request of a company official and the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of automotive axles, a substantial proportion of which are shipped to an affiliated plant where they are used in the assembly of automotive vehicles.
New information shows that workers leased from Syncreon were employed on-site at the Detroit, Michigan location of Chrysler, LLC, Detroit Axle Plant.
The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers. Based on these findings, the Department is amending this certification to include workers leased from Syncreon, working on-site at the Detroit, Michigan location of Chrysler, LLC, Detroit Axle Plant.
The amended notice applicable to TA–W–64,631 is hereby issued as follows:
All workers of Chrysler, LLC, Detroit Axle Plant, including on-site leased workers from Caravan Knight Facilities Management LLC, and Syncreon, Detroit, Michigan, who became totally or partially separated from employment on or after December 8, 2007, through January 12, 2011, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to prefabricated metal building components.
New information shows that some workers separated from employment at BlueScope Buildings North America had their wages reported through a separate unemployment insurance (UI) tax account under the name Butler Manufacturing Company, a division of BlueScope Buildings North America.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of the subject firm who were adversely affected by a shift in the production of prefabricated metal building components to Mexico.
The amended notice applicable to TA–W–73,758 is hereby issued as follows:
All workers of BlueScope Buildings North America, including workers whose unemployment insurance (UI) wages are reported through Butler Manufacturing Company, Laurinburg, North Carolina, who became totally or partially separated from employment on or after March 19, 2009, through May 18, 2012, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on September 2, 2009, applicable to workers of Chrysler Group LLC, formally known as Chrysler, LLC, Kenosha Engine Plant, Kenosha, Wisconsin. The notice was published in the
At the request of the state, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities in production of V–6 automobile engines.
The company reports that workers leased from Syncreon were employed on-site at the Kenosha, Wisconsin location of Chrysler Group LLC, formally known as Chrysler, LLC, Kenosha Engine Plant.
The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers. Based on these findings, the Department is amending this certification to include workers leased from Sycreon working on-site at the Kenosha Engine Plant.
The amended notice applicable to TA–W–70,784 is hereby issued as follows:
All workers at Chrysler Group LLC, formally known as Chrysler, LLC, Kenosha Engine Plant, including on-site leased workers from Caravan Knight Facilities Management LLC and Syncreon, Kenosha, Wisconsin, who became totally or partially separated from employment on or after May 27, 2008, through September 2, 2011, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA–W) number issued during the period of August 9, 2010 through August 13, 2010.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1- year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
The following determinations terminating investigations were issued because the Department issued a negative determination on petitions related to the relevant investigation period applicable to the same worker group. The duplicative petitions did not present new information or a change in circumstances that would result in a reversal of the Department's previous negative determination, and therefore, further investigation would duplicate efforts and serve no purpose.
I hereby certify that the aforementioned determinations were issued during the period of August 9, 2010 through August 13, 2010. Copies of these determinations may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 9, 2010.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 9, 2010.
Copies of these petitions may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail, to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or to
Occupational Safety and Health Administration (OSHA), Labor.
Announcement of meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH) and NACOSH subgroup meetings.
The National Advisory Committee on Occupational Safety and Health (NACOSH) will meet September 14 and 15, 2010, in Washington, DC. In conjunction with the NACOSH meeting, its Gulf Oil Spill Subgroup will meet.
Comments and requests to speak, including personal information, are placed in the public docket without change and may be available online. Therefore, OSHA cautions against submitting personal information such as social security numbers and birthdates.
NACOSH will meet Tuesday, September 14 and Wednesday, September 15, 2010, in Washington, DC. NACOSH meetings are open to the public.
NACOSH is authorized by section 7(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) to advise the Secretary of Labor and the Secretary of Health and Human Services on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory body and operates in compliance with provisions in the OSH Act, the Federal Advisory Committee Act (5 U.S.C. App.), and regulations issued pursuant to those laws (29 CFR 1912a, 41 CFR part 102–3).
The tentative agenda of the NACOSH meeting will include updates and discussions on the following topics:
• Remarks from the Assistant Secretary of Labor for Occupational Safety and Health (OSHA);
• Remarks from the Director of the National Institute for Occupational Safety and Health;
• OSHA Initiatives: Regulatory, Enforcement and Compliance Assistance;
• Update on the Gulf Oil Spill activities;
• Enhancing workers' voice in the workplace; and
• Ethics Update.
In addition, the Gulf Oil Spill subgroup was formed at the June 8, 2010, NACOSH meeting. The subgroup will meet from 3 p.m. until 4:30 p.m. on September 14, 2010, in Room N3437A/B/C and report back to the full committee on September 15.
NACOSH meetings are transcribed and detailed minutes of the meetings are prepared. Meeting transcripts and minutes are included in the public record of this NACOSH meeting (Docket No. OSHA 2010–0012).
Interested parties may submit a request to make an oral presentation to NACOSH by any one of the methods listed in the
Interested parties also may submit comments, including data and other information using any one of the methods listed in the
Individuals who need special accommodations to attend the NACOSH meeting should contact Ms. Chatmon using the contact information listed in the
You may submit comments and requests to speak (1) Electronically, (2) by facsimile, or (3) by hard copy. All submissions, including attachments and other materials, must identify the Agency name and the docket number for this notice (Docket No. OSHA–2010–0012). You also may supplement electronic submissions by uploading documents electronically. If, instead, you wish to submit hard copies of supplementary documents, you must submit three copies to the OSHA Docket Office using the instructions in the
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning submissions by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office.
Meeting transcripts and minutes as well as comments and requests to speak at the NACOSH meeting are included in the public record of the NACOSH meeting (Docket No. OSHA–2010–0012). Comments and requests to speak are posted without change at
For information on using
David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by section 7 of the Occupational Safety and Health Act of 1970 (U.S.C. 656), 29 CFR 1912a, and Secretary of Labor's Order No. 5–2007 (71 FR 31160).
By applications dated July 9, 2010 and July 16, 2010 (filed by a company official and a worker, respectively), administrative reconsideration of the negative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of the subject firm was requested. The determination was issued on June 18, 2010. The Department's Notice of determination was published in the
Pursuant to 29 CFR 90.18(c), reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a misinterpretation of facts or of the law justified reconsideration of the decision.
The negative determination of the TAA petition filed on behalf of workers at Specialty Chemicals, Inc., Franklin, Virginia, was based on the finding that there was no shift/acquisition of production of precipitated calcium carbonate from the subject firm to a foreign country; nor was there any increase in imports of articles like or directly competitive with precipitated calcium carbonate produced at the subject facility; nor was the component part produced by the subject firm (precipitated calcium carbonate) directly incorporated into a firm's production of an article that was the basis of a primary TAA certification.
The company official's request for reconsideration stated that the workers of the subject firm should be eligible for TAA because “our customer, International Paper (IP) Franklin, Virginia is certified as a Primary Producer (see TA–W–70,243). The date of the certification is still within the relevant period for the separations for which benefits are sought.” The company official asserts that workers of the subject firm are eligible to apply for TAA as adversely affected secondary workers.
The initial investigation revealed that there are two International Paper Company facilities in Franklin, Virginia, that employed workers who are eligible to apply for TAA. Workers at International Paper Company (Lumber Plant) Franklin, Virginia were certified as adversely affected primary workers (TA–W–70,243) and workers at International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia were certified as adversely affected secondary workers (TA–W–72,764).
The Department believes that the company official misidentified the petition number of International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia because, during the initial investigation, the company official confirmed that precipitated calcium carbonate was incorporated into the paper produced by International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia and International Paper Company confirmed that the subject firm supplied precipitated calcium carbonate to International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia.
The worker's request for reconsideration stated that the subject firm is a “supplier/downstream producer” to “International Paper” and “closed down as a direct result of what happened at the Franklin paper mill.” The Department determines that International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia is the “Franklin paper mill.”
Section 222(c) of the Trade Act of 1974, as amended, states that adversely affected secondary workers must be employed by a firm that is a supplier to a firm that employed a worker group who are adversely affected primary workers. Therefore, the supply of precipitated calcium carbonate to International Paper Company, Franklin Pulp and Paper Mill, Franklin, Virginia cannot be a basis for certification for workers of the subject firm.
The petitioners did not supply facts not previously considered nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination.
After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) has not been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Millennium Challenge Corporation.
10 a.m. to 12 p.m., Wednesday, September 15, 2010.
Department of State, 2201 C Street, NW., Washington, DC 20520.
Information on the meeting may be obtained from Melvin F. Williams, Jr., VP/General Counsel and Corporate Secretary via e-mail at
Meeting will be closed to the public.
The Board of Directors (the “Board”) of the Millennium Challenge Corporation (“MCC”) will hold a meeting to discuss approval of the Jordan Compact; approval of the Selection Criteria & Methodology Report; Compact Development and Portfolio Update; Threshold Program Review Update; and certain administrative matters. The agenda items are expected to involve the consideration of classified information and the meeting will be closed to the public.
Millennium Challenge Corporation.
Notice.
Section 608(d) of the Millennium Challenge Act of 2003 requires the Millennium Challenge Corporation to publish a report that identifies countries that are “candidate countries” for Millennium Challenge Account assistance during FY 2011. The report is set forth in full below.
This report to Congress is provided in accordance with section 608(a) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C. 7701, 7707(a) (the “Act”).
The Act authorizes the provision of Millennium Challenge Account (MCA) assistance for countries that enter into a Millennium Challenge Compact with the United States to support policies and programs that advance the progress of such countries to achieve lasting economic growth and poverty reduction. The Act requires the Millennium Challenge Corporation (MCC) to take a number of steps in selecting countries with which MCC will seek to enter into a compact, including (a) determining the countries that will be eligible for MCA assistance for fiscal year 2011 (FY11) based on a country's demonstrated commitment to (i) just and democratic governance, (ii) economic freedom, and (iii) investments in its people; and (b) considering the opportunity to reduce poverty and generate economic growth in the country. These steps include the submission of reports to the congressional committees specified in the Act and the publication of notices in the
(1) The countries that are “candidate countries” for MCA assistance for FY11 based on per capita income levels and eligibility to receive assistance under U.S. law, and countries that would be candidate countries but for specified legal prohibitions on assistance (section 608(a) of the Act);
(2) The criteria and methodology that the MCC Board of Directors (Board) will use to measure and evaluate the policy performance of the “candidate countries” consistent with the requirements of subsections (a) and (b) of section 607 of the Act in order to determine “MCA eligible countries” from among the “candidate countries” (section 608(b) of the Act); and
(3) The list of countries determined by the Board to be “MCA eligible countries” for FY11, identification of such countries with which the Board will seek to enter into compacts, and a justification for such eligibility determination and selection for compact negotiation (section 608(d) of the Act).
This report is the first of three required reports listed above.
The Act requires the identification of all countries that are candidates for MCA assistance for FY11 and the identification of all countries that would be candidate countries but for specified legal prohibitions on assistance. Sections 606(a) and (b) of the Act provide that for FY11 a country shall be a candidate for MCA assistance if it:
• Meets one of the following two income tests:
○ Has a per capita income equal to or less than the historical ceiling of the International Development Association eligibility for the fiscal year involved (or $1,905 gross national income (GNI) per capita for FY11) (the “low income category”); or
○ Is classified as a lower middle income country in the then most recent edition of the World Development Report for Reconstruction and Development published by the International Bank for Reconstruction and Development and has an income greater than the historical ceiling for International Development Association eligibility for the fiscal year involved (or $1,906 to $3,945 GNI per capita for FY11) (the “lower middle income category”); and
• Is not ineligible to receive U.S. economic assistance under part I of the Foreign Assistance Act of 1961, as amended, (the “Foreign Assistance Act”), by reason of the application of the Foreign Assistance Act or any other provision of law.
Pursuant to section 606(c) of the Act, the Board has identified the following countries as candidate countries under the Act for FY11. In so doing, the Board has anticipated that prohibitions against assistance as applied to countries in the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (Div. F, Pub. L. 111–117) (the “FY10 SFOAA”), will again apply for FY11, even though the Department of State, Foreign Operations, and Related Programs Appropriations Act for FY11 has not yet been enacted and certain findings under other statutes have not yet been made. As noted below, MCC will provide any required updates on subsequent changes in applicable legislation or other circumstances that affect the status of any country as a candidate country for FY11.
Countries that would be considered candidate countries for FY11, but are ineligible to receive United States economic assistance under part I of the Foreign Assistance Act by reason of the application of any provision of the Foreign Assistance Act or any other provision of law, are listed below. As noted above, this list is based on legal prohibitions against economic assistance that apply for fiscal year 2010 and that are anticipated to apply again for FY11.
1. Burma is subject to numerous restrictions, including section 570 of the fiscal year 1997 Foreign Operations, Export Financing, and Related Programs Appropriations Act (Pub. L. 104–208), which prohibits assistance to the government of Burma until it makes progress on improving human rights and implementing democratic government, and due to its status as a major drug-transit or major illicit drug producing country for 2009 (Presidential Determination No. 2009–30 (9/15/2009)).
2. Cote d'Ivoire is subject to section 7008 of the FY10 SFOAA and similar provisions of prior-year appropriations acts, which prohibit assistance to the government of a country whose duly elected head of government is deposed by military coup or decree. Cote d'Ivoire is also subject to section 7086(c) of the FY10 SFOAA, which restricts economic and security assistance under the SFOAA for the central government of a country that fails to make its annual national budget publicly available.
3. Eritrea is subject to restrictions due to its status as a Tier III country under the Trafficking Victims Protection Act, as amended, 22 U.S.C. sections 7101
4. Madagascar is subject to section 7008 of the FY10 SFOAA, which prohibits assistance to the government of a country whose duly elected head of government is deposed by military coup or decree and also section 7086(c) of the FY10 SFOAA regarding budget transparency.
5. North Korea is subject to numerous restrictions, including section 7007 of the FY10 SFOAA, which prohibits any direct assistance to the government.
6. Sudan is subject to numerous restrictions, including section 620A of the Foreign Assistance Act, which prohibits assistance to governments supporting international terrorism; section 7012 of the FY10 SFOAA and section 620(q) of the Foreign Assistance Act, both of which prohibit assistance to countries in default on payment to the U.S. in certain circumstances; section 7008 of the FY10 SFOAA, which prohibits assistance to the government of a country whose duly elected head of government is deposed by military coup or decree; and section 7070(f) of the FY10 SFOAA.
7. Uzbekistan's central government is subject to section 7076(a) of the fiscal year 2009 SFOAA, which is largely incorporated by reference and carried forward by section 7075 of the FY10 SFOAA. This restriction states that funds (other than expanded international military education and training funds) may be made available for assistance to the central government of Uzbekistan only if the Secretary of State determines and reports to the Congress that the government is making substantial and continuing progress in meeting its commitments under a framework agreement with the United States.
8. Zimbabwe is subject to several restrictions, including section 7070(i)(2) of the FY10 SFOAA, which prohibits assistance (except for macroeconomic growth assistance) to the central government of Zimbabwe unless the Secretary of State determines and reports to Congress that the rule of law has been restored in Zimbabwe.
1. China is not eligible to receive economic assistance from the United States, absent special authority, because of concerns relating to China's record on human rights.
2. Iraq is subject to section 620(t) of the Foreign Assistance Act, which prohibits assistance to any country which has severed diplomatic relations with the United States until such diplomatic relations are restored and an agreement to furnish such assistance has been negotiated and entered into after the resumption of diplomatic relations.
3. Syria is subject to numerous restrictions, including 620A of the Foreign Assistance Act, which prohibits assistance to governments supporting international terrorism; section 7007 of the FY10 SFOAA, which prohibits direct assistance; and section 7012 of the FY10 SFOAA and section 620(q) of the Foreign Assistance Act, both of which prohibit assistance to countries in default in payment to the U.S. in certain circumstances.
The countries identified above as candidate countries, as well as countries that would be considered candidate countries but for the applicability of legal provisions that prohibit U.S. economic assistance, may be the subject of future statutory restrictions, determinations, or changed country circumstances that affect their legal eligibility for assistance under part I of the Foreign Assistance Act by reason of application of the Foreign Assistance Act or any other provision of law for FY11. MCC will include any required updates on such statutory eligibility that affect countries' identification as candidate countries for FY11, at such time as it publishes the notices required by sections 608(b) and 608(d) of the Act, or at other appropriate times. Any such updates with regard to the eligibility or ineligibility of particular countries identified in this report will not affect the date on which the Board is authorized to determine eligible countries from among candidate countries which, in accordance with section 608(a) of the Act, shall be no sooner than 90 days from the date of publication of this report.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to reinstate use of a voluntary survey of visitors to the Public Vaults, which is part of the National Archives Experience in Washington, DC. The information will be used to determine how the various
Written comments must be received on or before October 29, 2010 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740–6001; or faxed to 301–713–7409; or electronically mailed to
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301–837–1694, or fax number 301–713–7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (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, including the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before September 29, 2010. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means:
Mail: NARA (NWML), 8601 Adelphi Road, College Park, MD 20740–6001. E-mail:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740–6001. Telephone: 301–837–1539. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Agriculture, Animal and Plant Health Inspection Service (N1–463–09–10, 1 item, 1 temporary item). Master files of an electronic information system used to track organizations and individuals with access to biological agents and toxins.
2. Department of Agriculture, Food and Nutrition Service (N1–462–09–2, 1 item, 1 temporary item). Master files of an electronic information system containing data that supports financial management and accounting operations.
3. Department of Health and Human Services, Agency for Healthcare Research and Quality (N1–510–09–11, 3 items, 3 temporary items). Master files of an electronic information system containing research topic nomination data, user comments, report drafts, and training materials relating to health care effectiveness.
4. Department of Health and Human Services, Centers for Medicare & Medicaid Services (N1–440–09–11, 1 item, 1 temporary item). Master files of electronic information systems containing information used to support quality reviews of Medicare payments for goods and services.
5. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–1, 2 items, 2 temporary items). Master files of an electronic information system containing copies of scanned images of law enforcement investigation records and other administrative and program records.
6. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–4, 4 items, 4 temporary items). Master files, inputs, and outputs of an electronic information system containing biographical, biometric, and other data relating to investigations and law enforcement encounters.
7. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–5, 6 items, 6 temporary items). Master files and outputs of an electronic information system containing information compiled on visa applicants during visa security reviews and recommendations to the State Department regarding issuance of the visas.
8. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–6, 7 items, 7 temporary items). Master files and outputs of an electronic information system containing information used to locate fugitive aliens, as well as information on activities taken to accomplish an arrest and information on aliens (both fugitive and non-fugitive) arrested.
9. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–7, 2 items, 2 temporary items). Master files of an electronic information system containing information on gangs, gang activities, and suspected or confirmed gang members and their associates.
10. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–10, 2 items, 2 temporary items). Master files of an electronic information system containing biographical information and scanned fingerprint images used for applicant and employee criminal history checks.
11. Department of Homeland Security, U.S. Immigration and Customs Enforcement (N1–567–10–11, 2 items, 2 temporary items). Master files and outputs of an electronic information system that contains information about immigration bonds posted for aliens involved in removal proceedings.
12. Department of Homeland Security, U.S. Citizenship and Immigration Services (N1–566–10–2, 4 items, 4 temporary items). Master files of an electronic information system used to track case files involving internal agency investigations.
13. Department of Housing and Urban Development, Agency-wide (N1 207–09–7, 1 item, 1 temporary item). Master files of an electronic information system containing reference copies of policy issuances posted on the agency Web site.
14. Department of the Interior, Office of Surface Mining and Reclamation Enforcement (N1 471–10–4, 1 item, 1 temporary item). Master files of an electronic information system used by coal companies to enter coal production data from which they can prepare required filings for multiple agencies.
15. Department of the Navy (N1–NU–10–2, 6 items, 2 temporary items). Hard copy aperture cards that have been converted to a digital format. The aperture cards contain engineering drawings of mechanical and electrical systems, ships, ordnance, and aircraft. Proposed for permanent retention are the digital versions of the aperture cards, as well as hard copy aperture cards not converted to a digital format.
16. Department of Veterans Affairs, Veterans Benefits Administration (N1–15–09–2, 1 item, 1 temporary item). Worksheets used to compare veterans' reported income with income records of the Internal Revenue Service and Social Security Administration.
17. Export-Import Bank of the United States, Agency-wide (N1–275–10–2, 1 item, 1 temporary item). Master files of an electronic information system used to track financial instruments with renegotiated terms and/or payment schedules.
18. Export-Import Bank of the United States, Agency-wide (N1–275–10–4, 1 item, 1 temporary item). Master files of an electronic information system used to monitor and evaluate risks of financial products.
19. Federal Maritime Commission, Office of the Secretary (N1–358–09–7, 11 items, 9 temporary items). Reading files, routine fact finding investigation files, official docket files for non-significant cases, interoffice confidential files, environmental assessments with findings of no significant impact, environmental/energy impact statements, certification files, and subject files. Proposed for permanent retention are official docket files for significant cases and Chairmen's and Commissioners' speech and biography files.
20. Federal Mine Safety and Health Review Commission, Docket Office (N1–470–09–2, 5 items, 4 temporary items). Audio recordings of Commission meetings, case files relating to citations and orders issued to mine operators, and master files of an electronic information system used to track cases.
21. Federal Mine Safety and Health Review Commission, Office of Administrative Law Judges (N1–470–09–3, 7 items, 7 temporary items). Cases pending files, subject files, chronological files, and administrative meeting files.
22. Federal Mine Safety and Health Review Commission, Office of General Counsel (N1–470–09–4, 13 items, 10 temporary items). Cases pending files, tally sheets, chronological files, petitions for review, rulemaking files, subject files, and FOIA reading room materials. Proposed for permanent retention are decisional memoranda, pre-decisional opinions, and speeches.
23. Federal Mine Safety and Health Review Commission, Office of Chairman, Commissioners, and Counsels (N1–470–09–5, 16 items, 15 temporary items). Pending case files, closed case files, petitions for reviews, copies of decisions, default orders, cases pending before the U.S. Court of Appeals, case tracking files, rulemaking files, legislative reference files, chronological files, subject files, management and meeting files, and EEO records. Speeches by the Chairman and Commissioners are proposed for permanent retention.
24. National Archives and Records Administration, Office of Records Services (DAA–0064–2010–0006, 1 item, 1 temporary item). Correspondence, applications, attendance records, billing documents, and other records relating to records management workshops, conferences, and training courses.
25. National Credit Union Administration, Agency-wide (N1–413–09–1, 16 items, 13 temporary items). Records relating to individual credit unions, including reports of examination, routine correspondence, and customer complaints. Also included are Community Development Revolving Loan Program files and credit union liquidation files. Proposed for permanent retention are credit union regulatory, charter, and insurance files.
Institute of Museum and Library Services, The National Foundation for the Arts and the Humanities.
Submission for OMB Review, Comment Request.
The Institute of Museum and Library Services announces the following information collection has been submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
OMB is particularly interested in comments that help the agency to:
• Evaluate 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;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submissions of responses.
Kim A. Miller, Management Analyst, Office of Policy, Planning, Research, and Communication, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036.
The Institute of Museum and Library Services (IMLS) is an independent Federal grant-making agency and is the primary source of federal support for the Nation's 123,000 libraries and 17,500 museums. IMLS provides a variety of grant programs to assist the Nation's museums and libraries in improving their operations and enhancing their services to the public. IMLS is responsible for identifying national needs for, and trends of, museum and library services funded by IMLS; reporting on the impact and effectiveness of programs conducted with funds made available by IMLS in addressing such needs; and identifying, and disseminating information on, the best practices of such programs. (20 U.S.C. Chapter 72, 20 U.S.C. 9108).
In accordance with Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
If you are attending the meeting and need access to the NSF, please contact the individual listed above so your name may be added to the building access list.
Update of 2010 activities.
Working Groups discussions.
Invited presentations.
Discussion with NSF International Coordinating Committee.
Conversation with NSF Acting Director.
Planning for the next meeting.
Pursuant to 10 CFR 2.313(c) and 2.321(b), the Atomic Safety and Licensing Board (Board) in the above-captioned
All correspondence, documents, and other materials shall continue to be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
Notice of issuance and availability of Draft Regulatory Guide, DG–8035, “Administrative Practices in Radiation Surveys and Monitoring.”
Harriet Karagiannis, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: (301) 251–7477 or e-mail
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment a draft guide in the agency's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The draft regulatory guide (DG) is temporarily identified by its task number, DG–8035, which should be mentioned in all related correspondence. DG–8035 is proposed Revision 1 of Regulatory Guide 8.2, dated August 1973. This guide provides general guidance that the staff of the NRC considers acceptable for the administrative practices associated with surveys and monitoring of ionizing radiation in licensed institutions, intended primarily for administrative and management personnel in organizations that are involved in, or are planning to initiate, activities involving the handling of radioactive materials or radiation.
The administrative requirements for radiation monitoring are mainly specified in Title 10 of the Code of Federal Regulations, part 20, “Standards for Protection against Radiation” (10 CFR part 20), and are applicable to all NRC-licensed activities. This part requires surveys in order to evaluate the significance of radiation levels that may be present. In addition, it requires radiation monitoring in order to obtain measurements for the evaluation of potential exposures and doses.
The NRC staff is soliciting comments on DG–8035. Comments may be accompanied by relevant information or supporting data and should mention DG–8035 in the subject line. Comments submitted in writing or in electronic form will be made available to the public in their entirety through the NRC's Agencywide Documents Access and Management System (ADAMS).
Comments would be most helpful if received by October 29, 2010. Comments received after that date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may submit comments by any one of the following methods. Please include Docket ID NRC–2010–0287 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site Regulations.gov. Because your comments will not be edited to remove
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this notice using the following methods:
Regulatory guides are not copyrighted, and Commission approval is not required to reproduce them.
For the Nuclear Regulatory Commission.
Nebraska Public Power District (NPPD or the licensee) is the holder of Facility Operating License No. DPR–46 which authorizes operation of the Cooper Nuclear Station (CNS). The license provides, among other things, that the facility is subject to the rules, regulations, and orders of the Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect.
The facility consists of a boiling-water reactor located in Nemaha County, Nebraska.
Title 10 of the Code of Federal Regulations (10 CFR), part 73, “Physical protection of plants and materials,” section 73.55, “Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage,” published in the
By application dated July 7, 2010, as supplemented by letter dated July 20, 2010, the licensee requested an exemption in accordance with 10 CFR 73.5, “Specific exemptions.” The licensee's letter contains security-related information and, accordingly, those portions are not available to the public. The licensee has requested an exemption from the August 31, 2010, implementation date, stating that it must complete a number of modifications to the current site security configuration before all requirements can be met. Specifically, the request is for three requirements that would be met by December 31, 2010, instead of the August 31, 2010, deadline. Granting this exemption for the three items would allow the licensee to complete the modifications designed to update aging equipment and incorporate state-of-the-art technology to meet or exceed the regulatory requirements.
Pursuant to 10 CFR 73.55(a)(1), “By March 31, 2010, each nuclear power reactor licensee, licensed under 10 CFR part 50, shall implement the requirements of this section through its Commission-approved Physical Security Plan, Training and Qualification Plan, Safeguards Contingency Plan, and Cyber Security Plan referred to collectively hereafter as `security plans.' ” Pursuant to 10 CFR 73.5, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 73 when the exemptions are authorized by law, and will not endanger life or property or the common defense and security, and are otherwise in the public interest. By letter dated February 26, 2010 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML100190100), the NRC approved an exemption that allowed NPPD an extension from March 31, 2010, until August 31, 2010, of the implementation date for three specific requirements of the new rule.
NRC approval of this exemption, as noted above, would allow an extension
In the draft final rule provided to the Commission, the NRC staff proposed that the requirements of the new regulation be met within 180 days. The Commission directed a change from 180 days to approximately 1 year for licensees to fully implement the new requirements. This change was incorporated into the final rule. From this, it is clear that the Commission wanted to provide a reasonable timeframe for licensees to achieve full compliance.
As noted in the final rule, the Commission also anticipated that licensees would have to conduct site-specific analyses to determine what changes were necessary to implement the rule's requirements, and that changes could be accomplished through a variety of licensing mechanisms, including exemptions. Since issuance of the final rule, the Commission has rejected a generic industry request to extend the rule's compliance date for all operating nuclear power plants, but noted that the Commission's regulations provide mechanisms for individual licensees, with good cause, to apply for relief from the compliance date, as documented in the letter from R.W. Borchardt (NRC) to M.S. Fertel (Nuclear Energy Institute) dated June 4, 2009 (ADAMS Accession No. ML091410309). The licensee's request for an exemption is therefore consistent with the approach set forth by the Commission and discussed in the letter dated June 4, 2009.
The licensee provided detailed information in the Attachment to its letter dated July 7, 2010, as supplemented by letter dated July 20, 2010, requesting an exemption. The licensee is requesting additional time to implement certain new requirements due to the impact on construction activities of the extremely wet spring and flooding of the Missouri River. The licensee describes a comprehensive plan to expand the protected area with upgrades to the security capabilities of its CNS site and provides a timeline for achieving full compliance with the new regulation. The Attachment to the licensee's letter dated July 7, 2010, contains security-related information regarding the site security plan, details of the specific requirements of the regulation for which the site cannot be in compliance by the August 31, 2010, deadline, justification for the exemption request, a description of the required changes to the site's security configuration, and a timeline with critical path activities that would bring the licensee into full compliance by December 31, 2010. The timeline provides dates indicating when (1) construction will begin on various phases of the project (
Notwithstanding the scheduler exemptions for these limited requirements, the licensee will continue to be in compliance with all other applicable physical security requirements as described in 10 CFR 73.55 and reflected in its current NRC-approved physical security program. By December 31, 2010, CNS will be in full compliance with the regulatory requirements of 10 CFR 73.55, as issued on March 27, 2009.
The NRC staff has reviewed the licensee's submittal and concludes that the licensee has justified its request for an extension of the compliance date with regard to three specified requirements of 10 CFR 73.55 until December 31, 2010.
Accordingly, the Commission has determined that pursuant to 10 CFR 73.5, “Specific exemptions,” an exemption from the August 31, 2010, compliance date is authorized by law and will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the Commission hereby grants the requested exemption.
The long-term benefits that will be realized when the CNS modifications are complete justifies extending the full compliance date in the case of this particular licensee. The security measures that CNS needs additional time to complete are new requirements imposed by March 27, 2009, amendments to 10 CFR 73.55, and are in addition to those required by the security orders issued in response to the events of September 11, 2001. Therefore, the NRC concludes that the licensee's actions are in the best interest of protecting the public health and safety through the security changes that will result from granting this exemption.
As per the licensee's request and the NRC's regulatory authority to grant an exemption from the August 31, 2010, deadline for the three items specified in the Attachment to NPPD's letter dated July 7, 2010, as supplemented by letter dated July 20, 2010, the licensee is required to be in full compliance with 10 CFR 73.55 by December 31, 2010. In achieving compliance, the licensee is reminded that it is responsible for determining the appropriate licensing mechanism (
The exemption extends the compliance date of three specified requirements of 10 CFR 73.55 until December 31, 2010. The Commission has determined that granting this exemption from the requirements of 10 CFR 73.55 involves (i) no significant hazards consideration, (ii) no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, (iii) no significant increase in individual or cumulative public or occupational radiation exposure, (iv) no significant construction impact, and (v) no significant increase in the potential for or consequences from radiological accidents. In addition, the requirements from which this exemption is sought involve 10 CFR 51.22(c)(25)(vi)(G), “Scheduling requirements.” Accordingly, the exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(25)(i)–(vi). Therefore, in accordance with 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the NRC's consideration of this exemption request.
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Economic Simplified Boiling Water Reactor (ESBWR) will hold a meeting on September 23–24, 2010, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance, with the exception of a portion that may be closed to protect information that is proprietary to General Electric—Hitachi Nuclear Energy (GEH) and its contractors pursuant to 5 U.S.C. 552b(c)(4).
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the safety evaluation reports for Chapter 3, “Design of Structures, Components, Equipment,” Chapter 4, “Reactor,” Chapter 6, “Engineered Safety Features,” Chapter 7, “Instruments and Control Systems,” and Chapter 9, “Auxiliary Systems.” The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, GEH, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301–415–7111 or E-mail
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
Nuclear Regulatory Commission.
Notice of Issuance and Availability of Regulatory Guide 8.35, Revision 1, “Planned Special Exposure.”
R. A. Jervey, Regulatory Guide Development Branch, Division of Engineering, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone (301) 251–7404 or e-mail
The U.S. Nuclear Regulatory Commission (NRC) is issuing a revision to an existing guide in the agency's “Regulatory Guide” series. This series was developed to describe and make available to the public information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
Revision 1 of Regulatory Guide 8.35, “Planned Special Exposure,” was issued with a temporary identification as Draft Regulatory Guide, DG–8032. This regulatory guide provides guidance on the conditions and prerequisites for permitting planned special exposure(s) (PSE(s)), as allowed by Title 10 of the Code of Federal Regulations (10 CFR) Part 20, “Standards for Protection Against Radiation,” the associated specific monitoring and reporting requirements, and examples of acceptable means of satisfying these requirements.
Dose limits are established in 10 CFR 20.1201, “Occupational Dose Limits for Adults.” Section 10 CFR 20.1206, “Planned Special Exposures,” provides the conditions and limits for PSEs of adult workers (i.e. radiation doses in addition to and accounted for separately from the doses received under the limits specified in 10 CFR 20.1201). In addition, 10 CFR 20.2104, “Notification of Prior Occupational Dose,” (10 CFR 20.2104(b) and 10 CFR 20.2104(e)(2)) specify the requirements for obtaining prior occupational dose information, 10 CFR 20.2105, “Records of Planned Special Exposures,” and 10 CFR 20.2106, “Records of Individual Monitoring Results,” specify the requirements for exposure and monitoring records applicable to PSEs. The requirements for reporting PSEs appear in 10 CFR 20.2202, “Notification of Incidents” (10 CFR 20.2202(e)) and 10 CFR 20.2204, “Reports of Planned Special Exposures.”
In December 2009, DG–8032 was published with a public comment period of 60 days from the issuance of the guide. Staff's responses to public comments were received and are located in the NRC's Agencywide Documents Access and Management System (ADAMS), under Accession No. ML101370019. The public comment period closed on March 11, 2010. The regulatory analysis may be found in ADAMS under Accession No. ML101370119.
Electronic copies of Regulatory Guide 8.35, Revision 1 are available through the NRC's public Web site under “Regulatory Guides” at
In addition, regulatory guides are available for inspection at the NRC's Public Document Room (PDR) located at Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852–2738. The PDR's mailing address is USNRC PDR, Washington, DC 20555–0001. The PDR can also be reached by telephone at (301) 415–4737 or (800) 397–4209, by
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
For the Nuclear Regulatory Commission.
Notice to amend a system of records.
The Peace Corps is revising two of its existing systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), PC–17—Volunteer Applicant and Service Records System, and PC–18—Former Peace Corps Volunteers Database. The first revision adds a specific routine use to both PC–17 and PC–18. This specific routine use indicates that the Peace Corps may share Peace Corps Volunteer and Returned Peace Corps Volunteer contact information with educational institutions with which the Peace Corps has a Fellows/Masters International agreement which requires access to such information. The second revision adds another specific routine use to both PC–17 and PC–18 indicating that the Peace Corps may share Peace Corps Volunteer and Returned Peace Corps Volunteer information with Returned Peace Corps Volunteer organizations that are furthering the Peace Corps' recruiting and third goal activities. The third revision indicates that all of the Peace Corps' General Routine Uses apply to PC–18. The fourth revision updates the System Manager information for PC–17.
This proposed action will be effective without further notice October 14, 2010 without further action, unless adverse comment is received by Peace Corps by September 29, 2010.
You may submit comments by e-mail to
Denora Miller, Privacy Act Officer, 202–692–1236,
The Privacy Act, 5 U.S.C. 552a, provides that the public will be given a 30-day period in which to comment on a revised routine use. The Office of Management and Budget (OMB), which has oversight responsibility under the Act, requires a 40-day period in which to review the revision. In accordance with 5 U.S.C. 552a, Peace Corps has provided a report on this system to OMB and the Congress. Peace Corps is publishing changes which affect the public's right or need to know.
PC–17—Peace Corps, Volunteer Applicant and Service Records System.
Changes:
After specific Routine Use (k)(4) add specific Routine Use (l) stating, “To any educational institutions with which the Peace Corps has a Fellows/USA or Masters International agreement which requires access to Volunteer or Returned Peace Corps Volunteer contact information in order to meet the terms of the agreement.”
After specific Routine Use (l) add specific Routine Use (m) stating “To Returned Peace Corps Volunteer organizations furthering the Peace Corps' recruiting or third goal activities. The information released will be limited to contact information.”
Delete current entry and replace with the following: “As the record flows from one state to another, or if a record is established for a specific purpose, the system manager is the agency official responsible for that particular function. People unsure about whom to contact, may contact the Peace Corps' FOIA/Privacy Officer at 1111 20th St., NW., Washington, DC 20526.
(1) The following system managers are located at 1111 20th St., NW., Washington, DC 20526: Director of Placement and Staging; Chief of Health Benefits and Analysis Division; Chief of Volunteer and Staff Payroll Services Branch; Director, Management Information and Assessment Division; Supervisor, Medical Records Manager in the Division of Volunteer Support;
(2) The following system managers can be contacted at the overseas post of assignment: Peace Corps Country Directors Overseas; Peace Corps Medical Officers Overseas.
PC–18—Peace Corps, Former Peace Corps Volunteers Database.
Changes:
Amend the statement of general routine uses to indicate that all of the Peace Corps' General Routine Uses apply to this system; and state that the following specific routines use applies to this system:
“The contents of these records may be disclosed:
“(a) To any educational institutions with which the Peace Corps has a Fellows/USA or Masters International agreement which requires access to Volunteer or Returned Peace Corps Volunteer contact information in order to meet the terms of the agreement.
“(b) To Returned Peace Corps Volunteer organizations furthering the Peace Corps' recruiting or Third Goal activities. The information released will be limited to contact information.”
Pension Benefit Guaranty Corporation.
Notice of request for extension of OMB approval, with modifications.
The Pension Benefit Guaranty Corporation (“PBGC”) is requesting that the Office of Management and Budget (“OMB”), under the Paperwork Reduction Act, extend approval, with modifications, of a collection of information in its regulations on Termination of Single Employer Plans and Missing Participants, and implementing forms and instructions (OMB control number 1212–0036, expires September 30, 2010). This notice informs the public of PBGC's request and solicits public comment on the collection of information.
Comments should be submitted by September 29, 2010.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
Copies of the request for extension (including the collection of information) may be obtained without charge by writing to the Disclosure Division of the Office of the General Counsel of PBGC at the above address, visiting the Disclosure Division, faxing a request to 202–326–4042, or calling 202–326–4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and ask to be connected to 202–326–4040.) The Disclosure Division will e-mail, fax, or mail the request to you, as you request. The regulations and forms and instructions relating to this collection of information may be accessed on PBGC's Web site at
Jo Amato Burns, Attorney, or Catherine B. Klion, Manager, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202–326–4024 (TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and ask to be connected to 202–326–4024.)
Under section 4041 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), a single-employer pension plan may terminate voluntarily only if it satisfies the requirements for either a standard or a distress termination. Pursuant to ERISA section 4041(b), for standard terminations, and section 4041(c), for distress terminations, and PBGC's termination regulation (29 CFR part 4041), a plan administrator wishing to terminate a plan is required to submit specified information to PBGC in support of the proposed termination and to provide specified information regarding the proposed termination to third parties (participants, beneficiaries, alternate payees, and employee organizations). In the case of a plan with participants or beneficiaries who cannot be located when their benefits are to be distributed, the plan administrator is subject to the requirements of ERISA section 4050 and PBGC's missing participants regulation (29 CFR part 4050). As noted above, these regulations may be accessed on PBGC's Web site at
PBGC estimates that 1,381 plan administrators will be subject to the collection of information requirements in PBGC's termination and missing participants regulations and implementing forms and instructions each year, and that the total annual burden of complying with these requirements is 2,325 hours and $3,327,341. Much of the work associated with terminating a plan is performed for purposes other than meeting these requirements.
U.S. Office of Personnel Management.
30–Day Notice and request for comments.
The Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension of an already existing information collection request (ICR) 3206–0001, Application for 10–Point Veterans' Preference. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35), as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection on behalf of the Office of Management and Budget. The information collection was previously published in the
1. Evaluate 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;
2. Evaluate the accuracy of the agency's 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 collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments are encouraged and will be accepted until September 29, 2010. This process is conducted in accordance with 5 CFR 1320.1.
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, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Standard Form (SF) 15, Application for 10–Point Veterans' Preference, is used by OPM examining offices and agency appointing officials to adjudicate individuals' claims for veterans' preference in accordance with the Veterans' Preference Act of 1944.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently—filed Postal Service request to add six Global Expedited Package Services 3 (MC2010–28) contracts to the competitive product list. This notice addresses procedural steps associated with the filing.
Comments are due: August 27, 2010.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
On August 18, 2010, the Postal Service filed a notice announcing that it has entered into six additional Global Expedited Package Services 3 (GEPS 3) contracts.
In support of its Notice, the Postal Service filed four attachments as follows:
1. Attachments 1A, 1B, 1C ,1D, 1E and 1F—redacted copies of the six contracts and applicable annexes;
2. Attachments 2A, 2B, 2C, 2D, 2E and 2F—certified statements required by 39 CFR 3015.5(c)(2) for each of the six contracts;
3. Attachment 3—a redacted copy of Governors' Decision No. 08–7 which establishes prices and classifications for GEPS contracts, a description of applicable GEPS contracts, formulas for prices, an analysis of the formulas, and certification of the Governors' vote; and
4. Attachment 4—an application for non–public treatment of materials to maintain redacted portions of the contracts and supporting documents under seal.
The Notice advances reasons why the instant GEPS 3 contracts fit within the Mail Classification Schedule language for GEPS. The Postal Service identifies customer–specific information and general contract terms that distinguish the instant contracts from the baseline GEPS 3 agreement all of which are highlighted in the Notice.
The Postal Service contends that the instant contracts are functionally equivalent to the baseline contract for GEPS 3 and share the same cost and market characteristics as the previously filed GEPS contracts.
The Postal Service concludes that its filings demonstrate that each of the new GEPS 3 contracts complies with the requirements of 39 U.S.C. 3633 and is functionally equivalent to the baseline GEPS 3 contract. Therefore, it requests that the instant contracts be included within the GEPS 3 product.
The Commission establishes Docket Nos. CP2010–96 through CP2010–101 for consideration of matters related to the contracts identified in the Postal Service's Notice.
These dockets are addressed on a consolidated basis for purposes of this order. Filings with respect to a particular contract should be filed in that docket.
Interested persons may submit comments on whether the Postal Service's contracts are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642. Comments are due no later than August 27, 2010. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Paul L. Harrington to serve as Public Representative in the captioned proceedings.
1. The Commission establishes Docket Nos. CP2010–96 through CP2010–101 for consideration of matters raised by the Postal Service's Notice.
2. Comments by interested persons in these proceedings are due no later than August 27, 2010.
3. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to serve as the officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently–filed Postal Service request to transfer commercial Standard Mail Fulfillment Parcels from the market dominant product list to the competitive product list. This notice addresses procedural steps associated with the filing.
Comments are due September 17, 2010; reply comments are due October 15, 2010.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel,
Pursuant to 39 U.S.C. 3642 and 39 CFR 3020
The Postal Service states that, to avoid confusion, this filing is based on the assumption that classification changes proposed in Docket No. R2010–4 will be approved by the Commission prior to consideration of this request.
As required by 39 CFR 3020.31 of the Commission's rules, a copy of Governors' Resolution No. 10–4 is included with the Request as Attachment A. Attachment B to the Request contains the Statement of Supporting Justification required by 39 CFR 3020.32 of the Commission's rules. Attachment C is the proposed draft MCS language and prices incorporating the language proposed in Docket No. R2010–4 as if already approved by the Commission with proposed additions and deletions for this Request.
The Postal Service summarizes the required Statement of Supporting Justification by noting that the current classification of parcels weighing less than one pound as market dominant products, and parcels weighing more than one pound as competitive products, produces a misalignment in the marketplace. Competitors make no such distinction and can offer seamless shipping options. The transfer would allow the Postal Service to offer similar comprehensive shipping solutions including contracts covering all parcels regardless of weight.
The Postal Service's Statement of Supporting Justification offers an explanation why the transfer to the competitive product list will not result in violation of the standards in 39 U.S.C. 3633.
The Statement of Supporting Justification seeks to demonstrate, pursuant to 39 CFR 3020.32(d), that the requested change does not propose to classify as competitive a product over which the Postal Service exercises sufficient market power that it can, without losing a significant level of business, set the price of the product substantially above costs, raise prices significantly, decrease quality, or decrease output.
Pursuant to 39 CFR 3032(f), the Postal Service states that the primary competitors to its Standard Mail Fulfillment Parcel services are the ground shipping services offered by UPS and FedEx and that each have the flexibility to price parcel products to maximize profitability.
The Postal Service states that the views of those who use the product are mainly concerned that the transfer will lead to price increases. In response, the Postal Service claims prices will need to be increased even absent a transfer to the competitive product list. It further states that one large customer supports transfer which offers the possibility of contracts for the product. The Postal Service states the transfer will allow contracts for complete shipping solutions and create mutually beneficial comprehensive solutions for shipping needs.
The Commission establishes Docket No. MC2010–36 to consider the Postal Service's proposal to transfer commercial Standard Mail Fulfillment Parcels to the competitive product list.
Interested persons may submit comments on whether the Postal Service's filing in the captioned docket is consistent with the policies of 39 U.S.C. 3633, 39 U.S.C. 3642, and 39 CFR 3020 subpart B. Comments are due no later than September 17, 2010. Reply comments, if any, are due October 15, 2010. The Postal Service's filing can be accessed via the Commission's Web site (
The Commission appoints James Waclawski to serve as Public Representative in this docket.
1. The Commission establishes Docket No. MC2010–36 for consideration of the matters raised in this docket.
2. Pursuant to 39 U.S.C. 505, James Waclawski is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons in these proceedings are due no later than September 17, 2010.
4. Reply comments by interested persons in this proceeding are due no later than October 15, 2010.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
Railroad Retirement Board (RRB).
Notice of a renewal of an existing computer-matching program that expired on August 13, 2010.
As required by the Privacy Act of 1974, as amended, the RRB is issuing public notice of its renewal of an ongoing computer-matching program with the Office of Personnel Management (OPM). The purpose of this notice is to advise individuals applying for or receiving benefits under the Railroad Retirement Act of the use made by RRB of this information obtained from OPM by means of a computer match.
This matching program becomes effective as proposed without further notice on October 12, 2010. We will file a report of this computer-matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB).
Interested parties may comment on this publication by writing to Ms. Beatrice Ezerski, Secretary to the Board, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092.
Mr. Timothy Grant, Chief Privacy Officer, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092, telephone 312–751–4869 or e-mail at
The Computer-Matching and Privacy Protection Act of 1988, (Pub. L. 100–503), amended by the Privacy Act of 1974, (5 U.S.C. 552a) as amended, requires a Federal agency participating in a computer-matching program to publish a notice in the
The Privacy Act, as amended, regulates the use of computer-matching by Federal agencies when records contained in a Privacy Act System of Records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer-matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments. The last notice for this matching program was published at 73 FR 2287–2288 (January 14, 2008).
We have taken appropriate action to ensure that all of our computer-matching programs comply with the requirements of the Privacy Act, as amended.
OPM and RRB.
The purpose of the match is to enable the RRB to (1) identify affected RRB annuitants who are in receipt of a Federal public pension benefit but who have not reported receipt of this benefit to the RRB, and (2) receive needed Federal public pension benefit information for affected RRB annuitants more timely and accurately.
Sections 3(a)(1), 4(a)(1) and 4(f)(1) of the Railroad Retirement Act, as amended, 45 U.S.C. 231b(a)(1), 231c(a)(1) and 231c(f)(1) require that the RRB reduce the Railroad Retirement benefits of certain beneficiaries entitled to Railroad Retirement employee and/or spouse/widow benefits who are also entitled to a government pension based on their own non-covered earnings. We call this reduction a Public Service Pension (PSP) offset.
Section 224 of the Social Security Act, as amended, 42 U.S.C. 424a, provides for the reduction of disability benefits when the disabled worker is also entitled to a public disability benefit (PDB). We call this a PDB offset. A civil service disability benefit is considered a PDB. Section 224(h)(1) requires any
The records to be used in the match and the roles of the matching participants are described as follows: OPM will provide the RRB once a year via secure encrypted electronic transfer, data extracted from its annuity and survivor master file of its Civil Service Retirement and Insurance Records. The Privacy Act System of Records designation is OPM/Central-1, (Civil Service Retirement and Insurance Records), Published in the
Normally in December of each year, OPM transmits to us approximately 2.5 million electronic records for matching. The records contain these data elements: Name, social security number, date of birth, civil service claim number, first potential month and year of eligibility for civil service benefits, first month, day, year of entitlement to civil service benefits, amount of current gross civil service benefits, and effective date (month, day, year) of civil service amount, and where applicable, civil service disability indicator, civil service FICA covered month indicator, and civil service total service months. The RRB will match the Social Security number, name, and date of birth contained in the OPM file against approximately the 1.2 million records in our files. For records that match, the RRB will extract the civil service payment information.
This matching program will become effective 40 days after a copy of the agreement, as approved by the Data Integrity Board of each agency, is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
By authority of the Board.
Railroad Retirement Board (RRB).
Notice of a renewal of an existing computer-matching program that expires on January 6, 2011.
As required by the Privacy Act of 1974, as amended, the RRB is issuing public notice of its renewal of an ongoing computer-matching program with the Social Security Administration (SSA). The purpose of this notice is to advise individuals applying for or receiving benefits under the Railroad Retirement Act of the use made by RRB of this information obtained from SSA by means of a computer match. The RRB is also issuing public notice, on behalf of the SSA, of their intent to conduct a computer-matching program based on information provided to them by the RRB.
This matching program becomes effective as proposed without further notice on October 12, 2010. We will file a report of this computer-matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB).
Interested parties may comment on this publication by writing to Ms. Beatrice Ezerski, Secretary to the Board, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092.
Mr. Timothy Grant, Chief Privacy Officer, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092, telephone 312–751–4869 or e-mail at
The Computer Matching and Privacy Protection Act of 1988, (Pub. L. 100–503), amended by the Privacy Act of 1974, (5 U.S.C. 552a) as amended, requires a Federal agency participating in a computer matching program to publish a notice in the
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records contained in a Privacy Act System of Records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments. The last notice for this matching program was published at 73 FR 31516–31517 (June 2, 2008).
We have taken appropriate action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
Railroad Retirement Board (RRB) and the Social Security Administration (SSA).
The RRB will, on a daily basis, obtain from SSA a record of the wages reported to SSA for persons who have applied for benefits under the Railroad Retirement Act and a record of the amount of benefits paid by that agency to persons who are receiving or have applied for benefits under the Railroad Retirement Act. The wage information is needed to compute the amount of the tier I annuity component provided by sections 3(a), 4(a) and 4(f) of the Railroad Retirement
Second, the RRB will receive from SSA the amount of certain Social Security benefits which the RRB pays on behalf of SSA. Section 7(b)(2) of the Railroad Retirement Act (45 U.S.C. 231f(b)(2)) provides that the RRB shall make the payment of certain Social Security benefits. The RRB also requires this information in order to adjust the amount of any annuity due to the receipt of a Social Security benefit. Section 10(a) of the Railroad Retirement Act (45 U.S.C. 231i(a)) permits the RRB to recover any overpayment from the accrual of Social Security benefits. This information is not available from any other source.
Third, once a year the RRB will receive from SSA a copy of SSA's Master Benefit Record for earmarked RRB annuitants. Section 7(b)(7)) of the Railroad Retirement Act (45 U.S.C. 231f(b)(7) requires that SSA provide the requested information. The RRB needs this information to make the necessary cost-of-living computation adjustments quickly and accurately for those RRB annuitants who are also SSA beneficiaries.
SSA will receive weekly from RRB earnings information for all railroad employees. SSA will match the identifying information of the records furnished by the RRB against the identifying information contained in its Master Benefit Record and its Master Earnings File. If there is a match, SSA will use the RRB earnings to adjust the amount of Social Security benefits in its Annual Earnings Reappraisal Operation. This information is available from no other source.
SSA will also receive daily from RRB earnings information on selected individuals. The transfer of information may be initiated either by RRB or by SSA. SSA needs this information to determine eligibility to Social Security benefits and, if eligibility is met, to determine the benefit amount payable. Section 18 of the Railroad Retirement Act (45 U.S.C. 231q(2)) requires that earnings considered as compensation under the Railroad Retirement Act be considered as wages under the Social Security Act for the purposes of determining entitlement under the Social Security Act if the person has less than 10 years of railroad service or has 10 or more years of service but does not have a current connection with the railroad industry at the time of his/her death.
Section 7(b)(7) of the Railroad Retirement Act (45 U.S.C. 231f(b)(7)) provides that the Social Security Administration shall supply information necessary to administer the Railroad Retirement Act. Sections 202, 205(o) and 215(f) of the Social Security Act (42 U.S.C. 402, 405(o) and 415(f)) relate to benefit provisions, inclusion of railroad compensation together with wages for payment of benefits under certain circumstances, and the re-computation of benefits.
All applicants for benefits under the Railroad Retirement Act and current beneficiaries will have a record of any Social Security wages and the amount of any Social Security benefits furnished to the RRB by SSA. In addition, all persons who ever worked in the railroad industry after 1936 will have a record of their service and compensation furnished to SSA by RRB.
The applicable RRB Privacy Act Systems of Records and their
1. RRB–5, Master File of Railroad Employees' Creditable Compensation; FR 75 43715 (July 26, 2010);
2. RRB–22, Railroad Retirement, Survivor, Pensioner Benefit System; FR 75 43727 (July 26, 2010).
1. SSA 60–0058, Master Files of Social Security Number (SSN) Holders and SSN Applications (the Enumeration System); 74 FR 62866 (December 1, 2009)
2. SSA/OSR, 60–0059, Earnings Recording and Self-Employment Income System (MEF); 71 FR 1819 (January 11, 2006)
3. SSA/OSR 60–0090, Master Beneficiary Record (MBR); 71 FR 1826 (January 11, 2006)
4. SSA/ODISSIS 60–103, Supplemental Security Income Record and Special Veteran Benefits; 71 FR 1830 (January 11, 2006)
5. SSA/OPB 60–0269, Prisoner Update Processing System (PUPS); 64 FR 11076 (March 8, 1999)
This matching program will become effective January 6, 2011 or 40 days after a copy of the agreement, as approved by the Data Integrity Board of each agency, is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
By authority of the Board.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Iowa (FEMA–1930–DR), dated 07/29/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Iowa, dated 07/29/2010, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration (SBA).
Notice of extension of waiver of regulatory provisions.
This notice announces the extension of the “Notice of waiver of regulatory provisions” for SBA's GO Loan Pilot until September 30, 2011. Due to the scope and magnitude of the devastation to Presidentially-declared disaster areas resulting from Hurricanes Katrina and Rita as well as the further devastation by the BP Oil Spill that began on April 20, 2010, the Agency is extending its full guaranty and streamlined and centralized loan processing available through the GO Loan Pilot to small businesses in the eligible parishes/counties through September 30, 2011.
The waiver of regulatory provisions published in the
Gail Hepler, Office of Financial Assistance, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416; Telephone (202) 205–7530;
On November 8, 2005, SBA initiated the GO Loan Pilot program which was designed to provide expedited small business financial assistance to businesses located in those communities severely impacted by Hurricanes Katrina and Rita. Under this unique initiative, SBA provides its full (85%) guaranty and streamlined and centralized loan processing to all eligible lenders that agree to make expedited SBA 7(a) loans available to small businesses located in, locating to or re-locating in the parishes/counties that have been Presidentially-declared as disaster areas resulting from Hurricanes Katrina and Rita, plus any contiguous parishes/counties.
To maximize the effectiveness of the GO Loan Pilot, on November 17, 2005, SBA published a notice in the
When compared to other similarly-sized Section 7(a) loans, the GO Loan portfolio is performing very well, at about one-half the rate of liquidation and one-quarter the rate of loan purchase compared to all other 7(a) loans of $150,000 or less. In addition, the demand for GO Loans has continued during FY2010 in response to the ongoing need to rebuild the Gulf Coast areas devastated by Hurricanes Katrina and Rita. The annualized number of GO Loans approved in FY 2010 is about the same as the number of approvals for FY 2009 at approximately 560 loans per year. Also, the Deepwater BP oil spill that began April 20, 2010, has further devastated the Gulf Coast region and adversely affected many small businesses.
Thus, the Agency believes it is appropriate to extend this unique and vital program through September 30, 2011. Accordingly, the SBA is also extending its waiver of the Agency regulations identified in the
15 U.S.C. 636(a)(24); 13 CFR 120.3.
U.S. Small Business Administration.
Notice of open Federal Advisory Committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the Advisory Committee on Veterans Business Affairs. The meeting will be open to the public.
Friday, September 24, 2010 from 9 a.m. to 5 p.m. in the Eisenhower Conference room, side b, located on the 2nd floor.
U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Advisory Committee on Veterans Business Affairs. The Advisory Committee on Veterans Business Affairs serves as an independent source of advice and policy recommendation to the Administrator of the U.S. Small Business Administration.
The purpose of the meeting is to finalize preparations for the 2010 Annual Report to SBA's Administrator, Associate Administrator for Veterans Business Development, Congress, and the President.
The meeting is open to the public; however, advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Advisory Committee on Veterans Business Affairs must contact Cheryl Simms, Program Liaison, by September 10, 2010 by fax or e-mail in order to be placed on the agenda. Cheryl Simms, Program Liaison, U.S. Small Business Administration, Office of Veterans Business Development, 409 3rd Street, SW., Washington, DC 20416, Telephone number: (202) 619–1697, Fax number: 202–481–6085, e-mail address:
Additionally, if you need accommodations because of a disability or require additional information, please contact Cheryl Simms, Program Liaison at (202) 619–1697; e-mail address:
For more information, please visit our Web site at
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend Rule 1017, Openings in Options, to reflect a system change to (i) modify the manner in which the PHLX XL® automated options trading system
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of the proposed rule change is to change the manner in which the PHLX XL® automated options trading system calculates the Opening Quote Range (“OQR”) in an options series during the automated opening process. The OQR is a price range outside of which the Exchange will not open an option series. The proposal also reflects new system functionality to state that if, at any point during the opening process the ABBO becomes crossed (
Currently, the PHLX XL system calculates the OQR for a particular series based upon the lowest quote bid on the Exchange and the highest quote offer on the Exchange among quotes that are compliant with the bid/ask differentials set forth in Rule 1014(c)(i)(A)(1)(a) (“valid width quotes”.)
The Exchange proposes to modify the PHLX XL system and Exchange Rule 1017(l) to reflect the new manner in which the PHLX XL system calculates the OQR under certain circumstances. The manner in which the PHLX XL system calculates the OQR will depend upon whether there is a valid ABBO on markets other than the PHLX.
As stated above, the PHLX XL system currently calculates a lowest bid and highest offer to use as a reference price on which to calculate the OQR. Under the proposal, Rule 1017(l)(ii) would be modified to state that a highest bid and lowest offer will be used when there are opening quotes
The PHLX XL system currently calculates the OQR without regard to away market(s) in the affected series. The Exchange proposes to modify this provision by enabling the PHLX XL system to consider the away market(s) in the affected series when calculating the OQR. Under the proposal, Rule 1017(l)(iii) would be modified to address the situation where there is an imbalance at the price at which the maximum number of contracts can trade that is also at or within the highest quote bid and lowest quote offer, and one or more away markets have disseminated opening quotes in the affected series. In this situation, the PHLX XL system will calculate an OQR based upon valid width quotes received by the Exchange and quotes that are disseminated by the away market(s).
In this situation, to determine the minimum value for the OQR, an
Proposed new Rule 1017(l)(iii)(A)(3) addresses the situation where there are away markets and the PHLX opening market is crossed or crosses away markets. If one or more away markets have disseminated opening quotes that are not crossed, and there are valid width quotes on the Exchange that cross each other or that cross away market quotes, the minimum value for the OQR will be the highest quote bid among quotes on away market(s). The maximum value for the OQR will be the lowest quote offer among quotes on away market(s). The purpose of this provision is to maintain market efficiency at the opening of trading when the PHLX market is crossed but there are away markets that the system can use as the OQR. The PHLX XL system will not add to the lowest away offer or subtract from the highest away bid in this situation in order to prevent an opening trade that would be through the ABBO.
Proposed new Rule 1017(l)(iv) addresses the situation where there is an imbalance at the price at which the maximum number of contracts can trade that is also at or within the highest quote bid and lowest quote offer, and no away markets have disseminated opening quotes in the affected series.
Proposed new Rule 1017(l)(iv)(A)(3) addresses the situation where there is an imbalance and there are opening quotes on the Exchange that cross each other, and there is no away market in the affected series. In this situation, the minimum value for the OQR will be the lowest quote bid among valid width quotes on the Exchange, and the maximum value for the OQR will be the highest quote offer among valid width quotes on the Exchange. The purpose of this provision is to maintain market efficiency at the opening of trading when there is an imbalance, and when the PHLX market is crossed but there are no away markets that the system can consider as the OQR. The PHLX XL system will not add to the highest quote offer on the Exchange or subtract from the lowest quote bid on the Exchange in order to ensure that the OQR is as narrow as possible when there are opening quotes on the PHLX that cross each other.
Proposed new Rule 1017(l)(ix) provides that if, at any point during the opening process the ABBO becomes crossed, the opening process will be terminated and the Exchange will not open the affected series. A new opening process for the affected series will commence at the time the ABBO is uncrossed. The purpose of this provision is to ensure that the PHLX XL system does not route contracts that cannot be executed on the PHLX to away markets that may be disseminating incorrect prices that cross another market, thus protecting investors in general from entering into executions at incorrect prices.
The Exchange proposes to re-number existing rules 1017(l)(iv)—(vii) to reflect the insertion of new proposed Rule 1017(i)(iv). There are no proposed substantive amendments to these existing rules.
Although the proposed rule change is effective upon filing, the Exchange anticipates that it will deploy the new PHLX XL functionality described herein on or around September 15, 2010.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The proposed rule change effects a change in an existing order-entry or trading system of a self-regulatory organization that: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not have the effect of limiting the access to or availability of the system. Therefore, the proposal is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange, pursuant to Section 19(b)(1) of the Act
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to codify certain factors that the Exchange may consider to be “exceptional circumstances” when determining whether an Exchange member has engaged in a pattern or practice of late trade reporting.
Currently, OFPA F–2 and Rule 1051 require a member or member organization initiating an options transaction, whether acting as principal or agent, to report or ensure that the transaction is reported within 90 seconds of the execution to the tape. Each also states that a pattern or practice of late reporting without exceptional circumstances may be considered conduct inconsistent with just and equitable principles of trade.
The Exchange proposes to modify OFPA F–2 and Rule 1051 to state that, in determining whether exceptional circumstances exist, the Exchange may consider late reports resulting from open outcry executions in: (i) A hedge order (as defined in Rule 1066(f));
(1) Spread Order. A spread order is an order to buy a stated number of option contracts and to sell a stated number of option contracts in a different series of the same option and may be bid for or offered on a total net debit or credit basis.
(A) Inter-Currency Spread Order. In the case of foreign currency options, a spread order may consist of an order to buy a stated number of option contracts in one foreign currency and to sell the same number of option contracts in a different foreign currency option.
(2) Straddle Order. A straddle order is an order to buy a number of call option contracts and the same number of put option contracts with respect to the same underlying security (in the case of options on a stock or Exchange-Traded Fund Share)
(3) Combination Order. A combination order is an order involving a number of call option contracts and the same number of put option contracts in the same underlying security and representing the same number of shares at option (if the underlying security is a stock or Exchange-Traded Fund Share) or the same number of foreign currency units (if the underlying security is a foreign currency). A combination order includes a conversion (generally, buying a put, selling a call and buying the underlying stock or Exchange-Traded Fund Share) and a reversal (generally, selling a put, buying a call and selling the underlying stock or Exchange-Traded Fund Share). In the case of adjusted option contracts, a combination order need not consist of the same number of shares at option.
(4) Tied Hedge Order. A tied hedge order is an option order that is tied to a hedge transaction as defined in Commentary .04 to Rule 1064, following the receipt of an option order in a class determined by the Exchange as eligible for “tied hedge” transactions.
A tied hedge order involves buying or selling a stock, security futures or futures position following receipt of an option order, including a complex order, but prior to announcing such order to the trading crowd, provided that certain conditions are met.
Currently, in order to establish whether a member or member organization has engaged in a pattern or practice of violating a specific order handling rule the Exchange may aggregate, or “batch,” individual violations of order handling OFPAs, and consider such “batched” violations as a single occurrence of a violation by a member or member organization over a specific time period.
Hedge orders and synthetic options are presented as a single order [sic] in the crowd, often including multiple option and/or stock components, on a net debit or credit basis. It is not unusual for the individual components of such an order to be executed at different times (especially in situations involving the execution of a stock component on an away equity market). Therefore, some components of the order may be executed while other components are pending execution. In many cases execution of the entire hedge or synthetic option order takes longer than 90 seconds to complete, resulting in late reporting for the individual components upon completion of the entire order at the net debit or credit price.
The Exchange believes that the inclusion of late trade reporting violations in the “batch” of violations respecting hedge or synthetic order transactions in open outcry unfairly penalizes a member or member organization engaging in legitimate hedge and synthetic option orders and thus proposes, when determining whether exceptional circumstances exist, to consider late reports of transactions in such orders executed in open outcry to be “exceptional circumstances” under the rule.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Selective Service System.
Notice.
The following form has been submitted to the Office of Management and Budget (0MB) for extension of clearance in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35):
Copies of the above identified form can be obtained upon written request to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209–2425.
Written comments and recommendations for the proposed extension of clearance of the form should be sent within 30 days of the publication of this notice to the Selective Service System, Reports Clearance Officer, 1515 Wilson Boulevard, Arlington, Virginia 22209–2425.
A copy of the comments should be sent to the Office of Information and Regulatory Affairs, Attention: Desk Officer, Selective Service System, Office of Management and Budget, New Executive Office Building, Room 3235, Washington, DC 20503.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/632–6473). The address is U.S. Department of State, SA–5, L/PD, Fifth Floor, Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Office of the United States Trade Representative.
Notice; revision.
The Office of the United States Trade Representative (USTR)
Inquiries may be mailed or delivered to Leslie O'Connor, Director of Agricultural Affairs, Office of Agricultural Affairs, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508.
Leslie O'Connor, Office of Agricultural Affairs, telephone: 202–395–6127 or facsimile: 202–395–4579.
On August 19, 2010, the Secretary of Agriculture announced that sugar entering the United States under the Fiscal Year 2011 raw sugar tariff-rate quota will be permitted to enter the U.S. Customs Territory beginning September 1, 2010, a month earlier than the beginning of Fiscal Year 2011 on October 1, 2010. Accordingly, USTR is revising the effective date of its notice of allocation to accommodate the Secretary's announcement. All other information contained in the August 17, 2010 USTR notice remains unchanged and will not be repeated in this notice.
Office of the United States Trade Representative.
Notice and modification of action.
Under the 2006 Softwood Lumber Agreement (SLA), Canada agreed to impose export measures on Canadian exports of softwood lumber products to the United States. At the request of the United States, an arbitral tribunal established under the SLA determined in March 2008 that Canada had breached certain SLA obligations. In February 2009, the tribunal issued a remedy award instructing Canada to collect an additional 10 percent
The modification of the April 2009 action is effective with respect to imports of softwood lumber products subject to the SLA from the provinces of Ontario, Quebec, Manitoba, and Saskatchewan with a shipment date of September 1, 2010 or later.
John Melle, Deputy Assistant USTR for the Americas, (202) 395–3412, or Suzanne Garner, Assistant General Counsel, (202) 395–9663, for questions concerning the enforcement of U.S. rights under the SLA; Heather Sykes, Chief, Trade Policy Branch, U.S. Customs and Border Protection, Department of Homeland Security, (202) 863–6099, for questions concerning entries of softwood lumber products, or William Busis, Chair of the Section 301 Committee and Deputy Assistant USTR for Monitoring and Enforcement, (202) 395–3150, for questions concerning procedures under Section 301.
For further information concerning U.S. rights under the SLA and the April 2009 action, see
Canada has adopted measures to comply with the February 2009 remedy award by imposing a 10 percent export charge on exports of softwood lumber products subject to the SLA from the provinces of Ontario, Quebec, Manitoba, and Saskatchewan. Canada enacted the necessary legislation, in the form of an amendment to the Softwood Lumber Products Export Charge Act, 2006, with parliamentary approval and royal assent on July 12, 2010. On August 4, 2010, Canada issued an Order in Council setting September 1, 2010 as the date to begin imposing the 10% charge on shipments of softwood lumber products from the provinces of Ontario, Quebec, Manitoba, and Saskatchewan.
Per an understanding between the Governments of the United States and Canada, Canada will collect the additional 10 percent charge on exports until the total of the amounts collected under the U.S. import duty and the Canadian charge on exports is equal to CDN $68 million. The understanding also provides for the United States and Canada to exchange information on the ongoing amounts collected under the U.S. import duty and the Canadian charge on exports.
In May 2010, the Section 301 Committee invited comments from interested persons with respect to the
Section 307 of the Trade Act authorizes the Trade Representative to modify or terminate an action taken under Section 301 if, among other things, “the foreign country is taking satisfactory measures to grant the rights of the United States under a trade agreement.” Sections 301(a)(2)(B)(i) and 307(1)(A). Pursuant to the recommendations of the Trade Policy Staff Committee and the Section 301 Committee, and taking account of the comments received in response to the May 2010 notice, the Trade Representative has determined: (1) That Canada's adoption of the July 2010 amendment to the Softwood Lumber Products Export Charge Act, 2006, and the August 2010 Order in Council constitute “satisfactory measures”; and (2) to modify the April 2009 action by removing the 10% import duty on entries of softwood lumber products from the provinces of Ontario, Quebec, Manitoba, and Saskatchewan with a shipment date of September 1, 2010 or later. In order to prevent any gap in collection of the charge, the 10% import duty will continue to apply to entries after September 1, 2010 with a shipment date of August 31, 2010 or earlier.
In accordance with the Trade Representative's determination to modify the April 2009 action, and effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after September 1, 2010, U.S. Note 13 to subchapter III of chapter 99 of the Harmonized Tariff Schedule of the United States (HTS) is modified by deleting subdivision (i) and inserting the following new subdivision in lieu thereof:
“(i) The additional duties provided for in subheading 9903.53.01 shall apply to articles entered, or withdrawn from warehouse for consumption, on or after September 1, 2010, if the Canadian export permits associated with the entries display a shipment date prior to September 1, 2010. The additional duties provided for in subheading 9903.53.01 shall not apply to articles entered, or withdrawn from warehouse for consumption, on or after September 1, 2010, if the Canadian export permits associated with the entries display a shipment date of September 1, 2010 or later.”
Pursuant to Section 306(a) of the Trade Act, the Trade Representative will continue to monitor the implementation of Canada's measures imposing a 10 percent export charge on exports of softwood lumber products subject to the SLA from the provinces of Ontario, Quebec, Manitoba, and Saskatchewan. Pursuant to Section 306(b), if the Trade Representative considers that Canada is not satisfactorily implementing these measures, the Trade Representative will determine what further action to take under Section 301.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Announcement of public listening session; request for comment.
FMCSA announces it will hold a public listening session to solicit input on key challenges facing the motor carrier industry, issues facing stakeholders, and concerns that should be considered by the Agency in developing its next 5-year Strategic Plan. FMCSA invites interested persons to participate in this important opportunity to help build FMCSA's next strategic plan. This notice also invites written comments, suggestions, and recommendations from all individuals and organizations on FMCSA's mission, vision, and strategic objectives (goals) for the plan.
The public meeting will be held September 8, 2010, in three consecutive listening sessions:
Submit comments for discussion at the listening session by September 1, 2010.
Additional written comments may be submitted by September 30, 2010.
Holiday Inn Washington-Capitol, 550 C Street, SW., Washington, DC 20024.
You may submit comments (identified by DOT Docket ID Number FMCSA–2010–0242) by any of the following methods. Do not submit the same comments by more than one method. However, to allow effective public participation before the comment period deadline, the Agency encourages use of the Web site listed below. This provides for the most efficient and timely receipt and processing of your comments.
•
•
•
•
Ms. Tretha Chromey, Office of Policy and Program Development, Strategic Planning and Program Evaluation Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave., SE., Washington, DC 20590; telephone (202) 366–1630 or e-mail
The primary mission of the Federal Motor Carrier Safety Administration (FMCSA) is to reduce crashes, injuries, and fatalities involving large trucks and buses. Established as a separate administration within the U.S. Department of Transportation (DOT) on January 1, 2000, FMCSA is headquartered in Washington, DC. The Agency employs more than 1,000 people in all 50 States and the District of Columbia, who are dedicated to improving the safety of commercial motor vehicles (CMVs) and saving lives.
In carrying out its safety mandate to reduce crashes, injuries, and fatalities involving large trucks and buses, FMCSA engages in a variety of regulatory, enforcement, outreach, educational, and research activities. FMCSA's Administrator has outlined three core principles for the Agency:
• Raise the safety bar to enter the motor carrier industry;
• Maintain high safety standards to remain in the industry; and
• Remove high-risk carriers, drivers, and vehicles from operations.
Following are some of the key issues that the Agency hopes public comments will address. In addition to general comments, we seek any documents, studies, or references relevant to the issues. The public may respond to some or all of the questions below. FMCSA will consider all comments received but may not necessarily incorporate every comment into the strategic plan.
1. How should we strengthen FMCSA's role/mission of improving the safety of commercial motor vehicles (CMV) and saving lives as it relates to some of FMCSA's core program: Commercial motor vehicle compliance and enforcement, commercial driver licensing, household goods protection, safe and secure transportation of hazardous materials?
2. How can FMCSA have a greater impact in the reduction of injury and loss of life on the nation's highways?
3. How can FMCSA improve the way it does business, provides customer service, and interacts with all road user groups? What are some of the challenges you have in interacting with FMCSA that prevent you from conducting your business effectively? What actions should FMCSA take to improve interactions between CMV drivers and drivers of private vehicles? Please identify possible improvements or ideas for doing better.
4. How might FMCSA improve or strengthen its partnership with stakeholders representing State enforcement agencies, safety advocacy groups, the motor carrier industry, and the general public to achieve its safety mission?
5. How should FMCSA balance driver-focused, vehicle-focused, and motor carrier-focused compliance, interventions, and enforcement to achieve its safety mission?
6. How will advanced vehicle technologies (such as crash avoidance, electronic on-board recorders [EOBRs], and global positioning systems [GPS]) impact the future of driver behavior, vehicle safety, and motor carrier safety?
7. How will changes in the following areas impact the industry, your organization, and/or FMCSA's ability to achieve its mission in the future?
• Demographics
• Economics
• New policies in environment, energy, and other areas
8. What technological changes could positively impact highway safety?
9. How will technology affect driver behavior? What issues related to vehicle/driver interaction could affect safety performance?
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Under the authority granted to me as Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
1. Chairperson, Clarissa Potter, Deputy Chief Counsel (Technical)
2. Sara M. Coe, Deputy Division Counsel (Small Business/Self Employed)
3. Curtis Wilson, Associate Chief Counsel (Passthroughs & Special Industries)
4. Andrew Keyso, Deputy Associate Chief Counsel (Income Tax & Accounting)
5. Drita Tonuzi, Deputy Division Counsel (Large & Mid-Size Business)
This publication is required by 5 U.S.C. 4314(c)(4).
Under the authority granted to me as Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
1. Christopher Meade, Principal Deputy General Counsel (Department of Treasury)
2. Richard Byrd, Commissioner (Wage & Investment)
3. Christopher Wagner, Commissioner (Small Business/Self Employed)
This publication is required by 5 U.S.C. 4314(c)(4).
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 720, Quarterly Federal Excise Tax Return.
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 13094, Recommendation for Juvenile Employment with the Internal Revenue Service.
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3534, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing regulation of proposed rulemaking, REG–149519–03, Section 707 Regarding Disguised Sales, Generally.
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3634, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing regulation, REG–147144–06, (TD 9446) Section 1.367(a)–8, Gain Recognition Agreements With Respect to Certain Transfers of Stock or Securities by United States Persons to Foreign Corporations.
Written comments should be received on or before September 29, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Joel Goldberger, at (202) 927–9368, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG–120616–03 (TD 9346), Entry of Taxable Fuel, (§§ 48.4081–1 and 48.4081–3).
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Joel Goldberger, at (202) 927–9368, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 2848, 2848(SP) Power of Attorney and Declaration of Representative.
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Joel Goldberger at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 927–9368, or through the Internet at
The burden estimate is as follows:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, CO–88–90 (TD 8530), Limitation on Net Operating Loss Carryforwards and Certain Built-In Losses Following Ownership Change; Special Rule for Value of a Loss Corporation Under the Jurisdiction of a Court in a Title 11 Case (Section 1.382–9).
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing proposed regulations, PS–19–92 (Final) Carryover Allocations and Other Rules Relating to the Low-Income Housing Credit, TD 9420—Section 42 Utility Allowance Regulations Update.
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, CO–99–91 (TD 8490), Limitations on Corporate Net Operating Loss (section 1.382–3).
Written comments should be received on or before October 29, 2010 to be assured of consideration.
Direct all written comments to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507. The Office of Thrift Supervision within the Department of the Treasury will submit the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. Today, OTS is soliciting public comments on its proposal to extend this information collection.
Submit written comments on or before October 29, 2010.
Send comments, referring to the collection by title of the proposal or by OMB approval number, to Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; send a facsimile transmission to (202) 906–6518; or send an e-mail to
You can request additional information about this proposed information collection from Richard B. Gaffin (202) 906–6181, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
Comments should address one or more of the following points:
a. Whether the proposed collection of information is necessary for the proper performance of the functions of OTS;
b. The accuracy of OTS's estimate of the burden of the proposed information collection;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of the information collection on respondents, including through the use of information technology.
We will summarize the comments that we receive and include them in the
• Provide employees incentives that do not encourage excessive risk-taking beyond the organization's ability to effectively identify and manage risk;
• Be compatible with effective controls and risk management; and
• Be supported by strong corporate governance, including active and effective oversight by the organization's board of directors.
These principles and the guidance are consistent with the Principles for Sound Compensation Practices adopted by the Financial Stability Board (FSB) in April 2009, as well as the Implementation Standards for those principles issued by the FSB in September 2009.
This guidance will promote the prompt improvement of incentive compensation practices in the banking industry by providing a common prudential foundation for incentive compensation arrangements across banking organizations and promoting the overall movement of the industry towards better practices. Supervisory action could play a critical role in addressing misaligned compensation incentives, especially where issues of competition may make it difficult for individual firms to act alone. Through their actions, supervisors could help to better align the interests of managers and other employees with organizations' long-term health and reduce concerns that making prudent modifications to incentive compensation arrangements might have adverse competitive consequences.
United States Mint, Department of the Treasury.
Notice.
The United States Mint has revised the requirements to become an Authorized Purchaser of American Eagle Gold Bullion Coins. The revised qualification requirements are documented in the revised “Procedures to Qualify for Bulk Purchase of Gold Bullion Coins.” (This document can be accessed at
B. B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street, NW.; Washington, DC 20220; or call 202–354–7500.
31 U.S.C. 5112(a)(7–11) and (i).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues regulations to implement Amendment 91 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). Amendment 91 is an innovative approach to managing Chinook salmon bycatch in the Bering Sea pollock fishery that combines a prohibited species catch (PSC) limit on the amount of Chinook salmon that may be caught incidentally with an incentive plan agreement and performance standard designed to minimize bycatch to the extent practicable in all years. This action is necessary to minimize Chinook salmon bycatch in the Bering Sea pollock fishery to the extent practicable while maintaining the potential for the full harvest of the pollock total allowable catch. Amendment 91 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
Effective September 29, 2010.
Electronic copies of Amendment 91, the Final Environmental Impact Statement (EIS), the Record of Decision (ROD), the Final Regulatory Impact Review (RIR), and the Biological Opinion prepared for this action may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; and by e-mail to
Gretchen Harrington or Seanbob Kelly, 907–586–7228.
NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
This final rule implements Amendment 91 to the FMP. In April 2009, the Council unanimously recommended Amendment 91 to the Secretary of Commerce. NMFS published a Notice of Availability of this amendment in the
This final rule applies to owners and operators of catcher vessels, catcher/processors, motherships, inshore processors, and the six Western Alaska Community Development Quota (CDQ) Program groups participating in the pollock (
Currently, pollock in the BSAI is managed as three separate units: the Bering Sea subarea, the Aleutian Islands subarea, and the Bogoslof District of the Bering Sea subarea. Separate overfishing limits, acceptable biological catch limits, and TAC limits are specified annually for Bering Sea pollock, Aleutian Islands pollock, and Bogoslof pollock. Amendment 91 applies only to management of the Bering Sea pollock fishery and will not affect the management of pollock fisheries in the Aleutian Islands or the status of pollock fishing in the Bogoslof District.
The Bering Sea pollock fishery is managed under the American Fisheries Act (AFA) (16 U.S.C. 1851 note), which “rationalized” the pollock fishery by identifying the vessels and processors eligible to participate in the fishery and allocating pollock among those eligible participants. Under the AFA, 10 percent of the Bering Sea pollock TAC is allocated to the CDQ Program. After the CDQ Program allocation is subtracted, an amount needed for the incidental catch of pollock in other Bering Sea groundfish fisheries is subtracted from the TAC. The remaining “directed fishing allowance” is then allocated among the AFA inshore sector (50 percent), the AFA catcher/processor sector (40 percent), and the AFA mothership sector (10 percent). Pollock allocations to the CDQ Program and the other three AFA sectors are further allocated annually between two seasons—40 percent to the A season (January 20 to June 10) and 60 percent to the B season (June 10 to November 1).
The CDQ Program pollock allocation is further allocated among the six non-profit corporations (CDQ groups) that represent the 65 communities eligible for the CDQ Program under section 305(i)(1)(D) of the Magnuson-Stevens Act. The CDQ Program also is described in more detail in the “Classification” section of this final rule. CDQ groups typically sell or lease their pollock allocations to harvesting partners, including vessels owned, in part, by individual CDQ groups. Although CDQ groups are not required to partner with AFA-permitted vessels to harvest CDQ pollock, the vessels harvesting CDQ pollock have been AFA permitted-vessels. The CDQ pollock allocations have most often been harvested by catcher/processors or catcher vessels delivering to a mothership. However, some pollock CDQ has been delivered to inshore processing plants in past years.
The AFA allows for the formation of fishery cooperatives within the non-CDQ sectors. The purpose of these AFA cooperatives is to further subdivide each sector's pollock allocation among participants in the sector or cooperative through private contractual agreements. The cooperatives manage these allocations to ensure that individual vessels and companies do not harvest more than their agreed upon share. The cooperatives also facilitate transfers of
Each year, catcher vessels eligible to deliver pollock to the seven eligible AFA inshore processors may form inshore cooperatives associated with a particular inshore processor. NMFS permits the inshore cooperatives, allocates pollock to them, and manages these allocations through a regulatory prohibition against an inshore cooperative exceeding its pollock allocation. The amount of pollock allocated to each inshore cooperative is based on the member vessels' pollock catch history from 1995 through 1997, as required under section 210(b) of the AFA (16 U.S.C. 1851 note). These catcher vessels are not required to join an inshore cooperative. Those that do not join an inshore cooperative are managed by NMFS under the “inshore open access fishery.”
The AFA catcher/processor sector is made up of the catcher/processors and catcher vessels eligible under the AFA to deliver pollock to catcher/processors. Owners of the catcher/processors that are listed by name in the AFA and still active in the pollock fishery have formed a cooperative called the Pollock Conservation Cooperative (PCC). Owners of the catcher vessels eligible to deliver pollock to the catcher/processors have formed a cooperative called the High Seas Catchers' Cooperative (HSCC).
The AFA mothership sector is made up of three motherships and the catcher vessels eligible under the AFA to deliver pollock to these motherships. These catcher vessels have formed a cooperative called the Mothership Fleet Cooperative (MFC). The MFC does not include the owners of the three motherships. The primary purpose of the cooperative is to sub-allocate the mothership sector pollock allocation among the catcher vessels authorized to harvest this pollock and to manage these allocations.
NMFS does not manage the sub-allocations of pollock among members of the PCC, HSCC, or MFC. The cooperatives control the harvest by their member vessels so that the pollock allocation to the sector is not exceeded. NMFS monitors pollock harvest by all members of the catcher/processor sector and mothership sector. NMFS retains the authority to close directed fishing for pollock by a sector if vessels in that sector continue to fish once the sector's seasonal allocation of pollock has been harvested.
Chinook salmon are accidently caught in the nets as fishermen target pollock. The Magnuson-Stevens Act defines bycatch as fish that are harvested in a fishery that are not sold or kept for personal use. Therefore, Chinook salmon caught in the pollock fishery are considered bycatch under the Magnuson-Stevens Act, the FMP, and NMFS regulations at 50 CFR part 679. Bycatch of any species, including discard or other mortality caused by fishing, is a concern of the Council and NMFS. National Standard 9 of the Magnuson-Stevens Act requires the Council to select, and NMFS to implement, conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality.
Culturally and economically valuable species like Chinook salmon, which are fully allocated and, in some cases, facing conservation concerns, are classified as prohibited species in the groundfish fisheries off Alaska under the FMP. The prohibited species are Chinook salmon, all other species of salmon (a category called “non-Chinook salmon”), steelhead trout, Pacific halibut, king crab, Tanner crab, and Pacific herring. Bycatch of prohibited species is highly regulated and closely managed. The FMP requires that groundfish fishermen avoid bycatch of prohibited species. Additionally, any salmon bycatch must either be donated to the Prohibited Species Donation (PSD) Program under § 679.26, or returned to sea as soon as practicable, with minimum injury, after an observer has determined the number of salmon and collected any scientific data or biological samples.
The Bering Sea pollock fishery catches up to 95 percent of the Chinook salmon taken incidentally as bycatch in the BSAI groundfish fisheries. From 1992 through 2001, the average Chinook salmon bycatch in the Bering Sea pollock fishery was 32,482 fish. Bycatch increased substantially from 2002 through 2007, to an average of 74,067 Chinook salmon per year. A historic high of approximately 122,000 Chinook salmon were taken in the Bering Sea pollock fishery in 2007. However, Chinook salmon bycatch has declined in recent years to 20,559 in 2008 and 12,414 in 2009. For the 2010 pollock A season, and the pollock B season that opened on June 10, bycatch rates are comparable to the low bycatch rates in 2009. The causes of the decline in Chinook salmon bycatch in 2008, 2009, and 2010 are unknown. The decline is most likely due to a combination of factors, including changes in abundance and distribution of Chinook salmon and pollock, and changes in fleet behavior to avoid salmon bycatch.
Chinook salmon bycatch also varies seasonally and by sector. In most years, the majority of Chinook salmon bycatch occurs during the A season. Since 2002, catcher vessels in the inshore sector typically have caught the highest number of Chinook salmon and had the highest bycatch rates by sector in both the A and B seasons. As discussed in the EIS (
In years of historically high Chinook salmon bycatch in the Bering Sea pollock fishery (2003 through 2007), the rate of Chinook salmon bycatch averaged 52 Chinook salmon per 1,000 tons of pollock harvested. With so few salmon relative to the large amount of pollock harvested, Chinook salmon encounters are difficult to predict or avoid. Industry agreements that require vessel-level cooperation to share information about areas of high Chinook salmon encounter rates probably are the best tool that the industry currently has to quickly identify areas of high bycatch and to avoid fishing there. However, predicting these encounter rates will continue to be difficult, primarily because of the current lack of understanding of the biological and oceanographic conditions that influence the distribution and abundance of salmon in the areas where the pollock fishery occurs.
Chinook salmon taken in the pollock fishery originate from Alaska, the Pacific Northwest, Canada, and Asian countries along the Pacific Rim. Estimates vary, but more than half of the Chinook salmon bycatch in the pollock fishery may be destined for western Alaska. Western Alaska includes the Bristol Bay, Kuskokwim, Yukon, and Norton Sound areas. In general, western Alaska Chinook salmon stocks declined sharply in 2007 and remained depressed in 2008 and 2009. Chapter 5 of the EIS provides additional information about Chinook salmon biology, distribution, and stock assessments by river system or region (
Chinook salmon support subsistence, commercial, personal use, and sport fisheries in their regions of origin. The
In recent years of low Chinook salmon returns, the in-river harvest of western Alaska Chinook salmon has been severely restricted and, in some cases, river systems have not met escapement goals. Surplus fish beyond escapement needs and subsistence use are made available for other uses. Commercial fishing for Chinook salmon may provide the only source of income for many people who live in remote villages. Chapter 3 of the RIR provides an overview of the importance of subsistence harvests and commercial harvests (
Over the past 15 years, the Council and NMFS have implemented several management measures to limit Chinook salmon bycatch in the BSAI trawl fisheries. In 1995, NMFS implemented an annual PSC limit of 48,000 Chinook salmon and specific seasonal no-trawling zones in the Chinook Salmon Savings Area that would close when the limits were reached (60 FR 31215; November 29, 1995). In 2000, NMFS reduced the Chinook Salmon Savings Area closure limit to 29,000 Chinook salmon, redefined the Chinook Salmon Savings Area as two non-contiguous areas of the BSAI (Area 1 in the AI subarea and Area 2 in the BS subarea), and established new closure periods (65 FR 60587; October 12, 2000).
Chinook salmon bycatch management measures were most recently revised under Amendments 84 to the FMP. The Council adopted Amendment 84 in October 2005 to address increases in Chinook and non-Chinook salmon bycatch that were occurring despite PSC limits that triggered closure of the Chinook and Chum Salmon Savings Areas.
Amendment 84 established in Federal regulations the salmon bycatch intercooperative agreement (ICA), which allows vessels participating in the Bering Sea pollock fishery to use their internal cooperative structure to reduce Chinook and non-Chinook salmon bycatch using a method called the voluntary rolling hotspot system (VRHS). Through the VRHS, industry members provide each other real-time salmon bycatch information so that they can avoid areas of high Chinook or non-Chinook salmon bycatch rates. The VRHS was implemented voluntarily by the fleet in 2002. Amendment 84 exempts vessels participating in the salmon bycatch reduction ICA from salmon savings area closures, and revised the Chum Salmon Savings Area closure to apply only to vessels directed fishing for pollock, rather than to all vessels using trawl gear. The exemptions to savings area closures for participants in the VRHS ICA were implemented by NMFS in 2006 and 2007 through an exempted fishing permit. Regulations implementing Amendment 84 were approved in 2007 (72 FR 61070; October 29, 2007), and NMFS approved the salmon bycatch reduction VRHS ICA in January 2008. Amendment 84 requires that parties to the ICA be AFA cooperatives and CDQ groups. All AFA cooperatives and CDQ groups participate in the VRHS ICA.
Using a system specified in regulations, the VRHS ICA assigns vessels in a cooperative to certain tiers, based on bycatch rates of vessels in that cooperative relative to a base rate, and implements large area closures for vessels in tiers associated with higher bycatch rates. The VRHS ICA managers monitor salmon bycatch in the pollock fisheries and announce area closures for areas with relatively high salmon bycatch rates. Monitoring and enforcement are accomplished through private contractual arrangements. The efficacy of voluntary closures and bycatch reduction measures must be reported to the Council annually.
While the annual reports suggest that the VRHS ICA has reduced Chinook salmon bycatch rates compared to what they would have been without the ICA, the highest historical Chinook salmon bycatch occurred in 2007, when the ICA was in effect under an exempted fishing permit. This high level of bycatch illustrated that, while the management measures implemented under Amendment 84 provided the pollock fleet with tools to reduce salmon bycatch, these measures contain no effective upper limit on the amount of salmon bycatch that could occur in the Bering Sea pollock fishery.
This final rule implements the provisions of Amendment 91, as approved by NMFS. The preamble to the proposed rule (75 FR 14016; March 23, 2010) provides a full description of the provisions implemented with this final rule and the justification for them. In summary, this final rule establishes two Chinook salmon PSC limits (60,000 Chinook salmon and 47,591 Chinook salmon) for the Bering Sea pollock fishery. For each PSC limit, NMFS will issue A season and B season Chinook salmon PSC allocations to the catcher/processor sector, the mothership sector, the inshore cooperatives, and the CDQ groups. Chinook salmon allocations remaining from the A season can be used in the B season (“rollover”). Entities can transfer PSC allocations within a season and can also receive transfers of Chinook salmon PSC to cover overages (“post-delivery transfers”).
NMFS will issue transferable allocations of the 60,000 Chinook salmon PSC limit to those sectors that participate in an incentive plan agreement (IPA) and remain in compliance with the performance standard. Sector and cooperative allocations would be reduced if members of the sector or cooperative decided not to participate in an IPA. Vessels and CDQ groups that do not participate in an IPA would fish under a restricted opt-out allocation of Chinook salmon. If a whole sector does not participate in an IPA, all members of that sector would fish under the opt-out allocation.
The IPA component is an innovative approach for fishery participants to design industry agreements with incentives for each vessel to avoid Chinook salmon bycatch at all times and thus reduce bycatch below the PSC limits. This final rule establishes performance-based requirements for the IPAs. To ensure participants develop effective IPAs, this final rule requires that participants submit annual reports to the Council that evaluate whether the IPA is effective at providing incentives for vessels to avoid Chinook salmon at all times while fishing for pollock.
The sector-level performance standard ensures that the IPA is effective and that sectors cannot fully harvest the Chinook salmon PSC allocations under the 60,000 Chinook salmon PSC limit in most years. Each year, each sector will be issued an annual threshold amount that represents that sector's portion of 47,591 Chinook salmon. For a sector to continue to receive Chinook salmon
NMFS will issue transferable allocations of the 47,591 Chinook salmon PSC limit to all sectors, cooperatives, and CDQ groups if no IPA is approved, or to the sectors that exceed the performance standard.
Transferability of PSC allocations is expected to mitigate the variation in the encounter rates of Chinook salmon bycatch among sectors, CDQ groups, and cooperatives in a given season by allowing eligible participants to obtain a larger portion of the PSC limit in order to harvest their pollock allocation or to transfer surplus allocation to other entities. When a PSC allocation is reached, the affected sector, inshore cooperative, or CDQ group would have to stop fishing for pollock for the remainder of the season even if its pollock allocation had not been fully harvested.
This final rule also removes from regulations the 29,000 Chinook salmon PSC limit in the Bering Sea, the Chinook Salmon Savings Areas in the Bering Sea, exemption from Chinook Salmon Savings Area closures for participants in the VRHS ICA, and Chinook salmon as a component of the VRHS ICA. This final rule does not change any regulations affecting the management of Chinook salmon in the Aleutian Islands or non-Chinook salmon in the BSAI. The Council is currently considering a separate action to modify the non-Chinook salmon management measures to minimize non-Chinook salmon bycatch.
This section provides a summary of the substantive changes made to the final rule in response to public comments. Section 304(b)(3) of the Magnuson-Stevens Act requires NMFS to consult with the Council before making any revisions to proposed regulations and to publish in the
NMFS changed the time limit in the final rule for operators of catcher/processors, catcher vessels delivering to motherships, and motherships to record the CDQ group number in the paper or electronic logbooks to within 2 hours after completion of weighing on the scale all catch in the haul. NMFS is preparing a separate proposed rule to revise and standardize reporting time limits to address the time limit for recording scale weights of each haul and other required information because these requirements affect more vessels than those regulated under Amendment 91. These additional revisions are expected to be effective by January, 2011.
NMFS modified the final rule to (1) allow a catcher vessel to begin a new trip before the salmon census and sampling are complete from the vessel's prior trip and (2) clarify that a shoreside or stationary processor must give the observer the opportunity to complete the count of salmon and collect biological samples before sorting a new pollock offload. In 2011, NMFS' observer sampling policy and observer duties for the Bering Sea pollock fishery will be modified for monitoring offloads at shoreside processors and stationary floating processors. The plant observer on duty will be tasked with monitoring each offload for proper salmon sorting, verifying the count of salmon, and collecting biological samples and scientific data.
NMFS has modified the final rule to clarify that the observation area and the observer work station may be located in separate areas, while also requiring the observer work station be adjacent to the location where the observer counts all salmon and collects scientific data or biological information. NMFS also modified the final rule to require that all salmon be stored in a “salmon storage container.” The observation area must now provide a clear, unobstructed view of the salmon storage container to ensure no salmon of any species are removed without the observer's knowledge. NMFS made these changes to the final rule to give processors more flexibility to achieve the goals of allowing an observer to monitor all the sorting of salmon as well as verify the count of the salmon.
NMFS changed the final rule to subtract a vessel's opt-out allocation from a sector's annual threshold amount in a method similar to the Council's recommended method for determining the sector allocation under the 60,000 Chinook salmon PSC limit.
To improve the implementation of sector entities, NMFS modified the final rule to clarify that: (1) NMFS will authorize only one entity to represent the catcher/processor sector and only one entity to represent mothership sector; (2) under the 60,000 Chinook salmon PSC limit, the entity for each sector has to represent all IPA participating vessel owners in that sector; and (3) vessel owners in the catcher/processor sector and mothership sector must be a member of the sector entity to join an IPA. NMFS changed the deadline for the entity application from November 1 to October 1, to coincide with the deadline for the IPA application, and added a December 1 deadline for the entity representative to make changes to the vessels that are members of the entity. NMFS also changed the regulations to clarify that an entity representative may sign more than one IPA on behalf of the vessel owners participating in that IPA.
NMFS removed joint and several liability provisions for cooperatives and the entities representing the catcher/processor sector and mothership sector. In the proposed rule, these provisions created some confusion and they are unnecessary because NOAA has independent authority to exercise its discretion to seek to impose joint liability if the evidence supports doing so.
NMFS changed the final rule to clarify that a vessel is prohibited from fishing for an entity that has exceeded its Chinook salmon PSC allocation.
NMFS changed the final rule to: (1) Modify the minimum participation requirement for an IPA to clarify that parties to an IPA must collectively represent at least 9 percent of the Bering Sea pollock quota; (2) modify the IPA requirement to better reflect the Council motion that says that an IPA must describe incentives for each vessel to avoid Chinook salmon bycatch under any condition of pollock and Chinook
To clarify a CDQ group's participation in one or more approved IPAs, NMFS added a requirement in the final rule that, for a CDQ group to be a member of an IPA, the CDQ group must list each vessel harvesting pollock CDQ on behalf of that CDQ group in the IPA.
NMFS removed the proposed rule's requirement that the video monitor display the “activities within the tank,” and clarified in the final rule that the purpose of the video monitor is to enable the observer to view any area where crew could sort salmon and view the salmon contained in the storage container. Also, for clarity and consistency, NMFS revised the final rule to allow NMFS staff or other authorized personnel, including observers, the ability to view any video footage from earlier in the trip.
In the final rule, NMFS changed column G in Tables 47a, 47b, and 47c and column E in Table 47d to show each vessel's annual amount of Chinook salmon for the opt-out allocation that will be deducted from the sector's annual threshold amount for the performance standard if a vessel opts-out of an IPA. NMFS also modified the percent of the inshore sector's pollock allocation in column D of Table 47c to include four decimal places.
NMFS made the following changes from the proposed rule to the final rule to clarify regulatory language or correct mistakes in the proposed rule.
In the final rule, NMFS corrects the proposed language at § 679.61(f)(1) to retain the requirement for a preliminary AFA cooperative report. The proposed rule anticipated the publication of another rule that would have provided notice and an opportunity for public comment to remove this AFA reporting requirement. Until such a process is completed, NMFS cannot remove the regulations requiring a preliminary report at § 679.61(f)(1). Retaining the preliminary report does not change the information collection burden on AFA cooperatives; however, the final rule still changes the submission deadline for the final annual AFA cooperative reports from February 1 to April 1 to coincide with the deadlines for a new Chinook salmon IPA annual report and the non-Chinook salmon ICA annual report. Having the same deadline for all three of these reports allows the Council to discuss any of these annual reports at one time during its April Council meeting. At its June 2010 meeting, the Council recommended that NMFS pursue a proposed rule to remove the regulations requiring a preliminary AFA report.
NMFS corrected the proposed rule to retain allocations of the trawl gear PSC limits to the CDQ Program as a prohibited species quota (PSQ) reserve. The proposed rule, at § 679.21(e)(3)(i)(A)(3)(i), inadvertently eliminated the 7.5 percent apportionment of the PSC limit for AI Chinook salmon set forth in paragraph (e)(1)(viii). This correction is necessary to ensure that CDQ participants will be subject to the AI salmon area closure based on the PSC limit established for the CDQ sector by Amendment 82 to the BSAI FMP (70 FR 9856, March 1, 2005).
International fishing boats are prevented from fishing in the U.S. exclusive economic zone, and observing vessels fishing in international waters is outside the scope of this action.
Observers aboard catcher/processors and motherships will still complete their normal sampling duties. Observers have routinely reported the number of salmon collected during a haul. The responsibility for ensuring that all salmon are removed from the catch and counted will fall upon the vessel with the observer providing third party verification. The use of electronic monitoring systems will supplement the observer's ability to monitor proper sorting and ensure that no salmon are removed from the storage container until an observer has had the opportunity to verify the count and collect scientific data and biological samples on a haul by haul basis.
This system already exists under § 679.21(c), prohibited species bycatch management, and through the observers sampling protocols established by the FMA Division. The regulations at § 679.21(c) direct vessels to sort all salmon bycatch into bins and separate by haul until the number of salmon can be determined by the observer. Observers estimate these salmon counts are approximately 95 percent accurate.
For the inshore sector, the final rule, at § 679.21(c)(2)(i) and (iii), is clear that the responsibility for ensuring all salmon are sorted, stored, and accounted properly falls upon the vessel operator or shoreside processor. Additionally, § 679.5(e)(5)(i)(C)(
For catcher vessels, no salmon may be removed or discarded at sea and all salmon must be delivered to a shoreside processor; see § 679.7(d)(7)(E) and § 679.21(c)(2)(ii)(B). Additionally, catcher vessels that have the ability to sort below deck do not have many opportunities to sort out salmon while the codend is being dumped. NMFS acknowledges that there may be a small opportunity to remove salmon while the codend is being dumped; however, these vessels would be in violation of the requirement to retain all salmon.
These provisions are overly prescriptive, would increase costs to participants while reducing flexibility, and would require contractors to maintain a large pool of observers onshore to ensure that catcher vessels could start a new fishing trip prior to the observer completing their duties. And, it should not be the responsibility of the observer assigned to the catcher vessel for the next trip to collect the data from the previous trip. These responsibilities should be shared by the vessel and plant observers. The final rule should require only that no catcher vessel may start a new fishing trip unless it has an observer onboard. Which observer the vessel carries and whether a vessel or plant observer completes the salmon census and all sampling for a prior delivery should not matter. In light of additional observer coverage and changing duties involved in Chinook salmon bycatch accounting, a more flexible approach to duty assignment is necessary.
NMFS removed the restriction on a vessel's ability to begin a new trip, at § 679.21(c)(2)(ii)(C) of the proposed rule. Instead, NMFS revised the prohibition at § 679.7(d)(8)(ii)(C)(
NMFS made the following changes in the final rule to give processors more flexibility to achieve the goals of allowing an observer to monitor all the sorting of salmon and verify the count of salmon. These changes are necessary because processing facilities vary greatly in the methods used to sort and weigh fish.
In response to comments that the observation area may not provide enough space to hold the salmon storage area, NMFS revised the final rule at § 679.21(c)(2)(iii)(C), (D), and (E) by removing the requirement to store and count salmon in the observation area. Instead, the final rule requires salmon to be stored in a “salmon storage container.” No additional revisions are needed because the final rule, at § 679.21(c)(2)(iii)(D), allows shoreside processors or stationary processors to remove the salmon from the storage container if the salmon become too numerous to contain in this location.
NMFS added a requirement, at § 679.28(g)(7)(vi)(C), that the observation area must provide a clear, unobstructed view of the salmon storage container to ensure no salmon of any species are removed without the observer's knowledge.
NMFS revised paragraph § 679.28(g)(7)(vii) to allow for the observation area and the observer work station to be in separate locations, while also requiring the observer work station be adjacent to the location where the observer counts all salmon and collects scientific data or biological information.
Last, NMFS revised the regulations at § 679.28(g)(7)(x)(F) to clarify that the CMCP requirement to include the location of the salmon storage container is only for shoreside or stationary floating processors taking pollock deliveries.
The FMA Division makes policy decisions about the tasks an observer performs. In the past, vessel observers monitored offloads of shoreside pollock deliveries. Beginning in 2011, observer program policy will place the primary responsibility for monitoring the proper sorting of salmon, verifying the count of salmon, and collecting scientific data and biological samples upon the observers stationed at the processing facility. The vessel observer may provide the plant observer breaks or other assistance as needed during the offload.
Proper accounting of pollock catch and salmon bycatch to an AFA sector, inshore cooperative, or CDQ group requires identification of whether a haul by a catcher/processor or a delivery by a catcher vessel to either a mothership, shoreside processor, or stationary floating processor is assigned to a specific CDQ group. If no CDQ group is identified with the haul or delivery, that pollock, associated salmon bycatch, and other catch in the haul or delivery is attributed to the sector or inshore cooperative to which the vessel or processor belongs. For catcher/processors and motherships, observer data is used to determine the weight of pollock and number of salmon associated with the haul or delivery, and the CDQ group number must be properly identified in the observer data at the time the data is transmitted by the observer from the vessel to NMFS. The primary and official source of the CDQ group number for the observer is the
Under current regulations, operators of catcher vessels and catcher/processors using any gear type and the operators of motherships are required to record the CDQ group number in their logbooks within 2 hours after the completion of gear retrieval. This requirement has existed for logbooks for many years so that vessel operators can document whether catch in a haul or set is occurring in CDQ or non-CDQ fisheries. The primary reasons for requiring the vessel operators to indicate in their logbooks that they were fishing on behalf of a CDQ group are: (1) To document why a vessel may be directed fishing for a groundfish species when the non-CDQ fisheries for that species were closed; (2) to record production and retained catch separately in the CDQ and non-CDQ fisheries for purposes of calculating maximum retainable amounts of groundfish not open for directed fishing; and (3) to provide information for proper accounting of catch to allocated quotas.
The requirement to record both the scale weight of the haul and the CDQ group number within 2 hours of completion of gear retrieval applies to daily cumulative production logbooks (DCPLs) for catcher/processors using trawl gear under regulations at § 679.5(c)(4)(ii)(B). However, as described in the proposed rule, under Amendment 91 AFA catcher/processors or any catcher/processor harvesting pollock CDQ will no longer be filling out DCPLs (the paper logbooks). Vessel operators are required to record all information previously required in the DCPL in an electronic logbook (ELB). This final rule adds text to the introductory paragraph of the trawl catcher/processor DCPL requirements to clarify that the operators of AFA catcher/processors or any catcher/processor harvesting pollock CDQ are required to use an ELB and no longer report using a DCPL.
Regulations at § 679.5(f)(2)(iii)(B)(
NMFS is preparing a separate proposed rule to revise and standardize time limits in § 679.5 for daily fishing logbooks (DFLs), DCPLs, and ELBs and will address the time limit for recording the scale weight of each haul and all other required information in this separate rulemaking because these requirements affect more than the vessels regulated under Amendment 91. This separate rulemaking is expected to be effective by January 1, 2011. However, until these revisions are made, operators of catcher/processors fishing under Amendment 91 are not required to record scale weights of each haul in the ELB within 2 hours of completion of gear retrieval.
NMFS changed the final rule to add a requirement that the operator of the vessel must provide the information recorded in the ELB to the observer or an authorized officer upon request at any time after the specified deadlines and before the ELB logsheet is printed. This requirement is needed because the CDQ group number is required to be recorded in the ELB within 2 hours after weighing of the catch, but the vessel operator is only required to print a copy of the ELB logsheet for the observer's use by noon each day to record the previous day's ELB information. The observer may need access to the information about the CDQ group number recorded in the ELB prior to the daily printing of the ELB logsheet page to submit observer data to NMFS in a timely manner. As stated in the comment, timely submission of observer data will be essential to the industry to manage Chinook salmon bycatch under Amendment 91.
The same issue raised in this comment about the time needed to assess catch composition before assigning the catch in the haul to a CDQ group or the partner vessel also applies to catcher vessels delivering to motherships. Current regulations at § 679.5(c)(4)(ii)(A) require the operator of a catcher vessel using trawl gear to record the CDQ group number in its DFL within 2 hours after completion of gear retrieval. Catcher vessels delivering unsorted codends do not retrieve gear onboard the catcher vessel, but just transfer the codend from the catcher vessel to the mothership. The trawl net is hauled onboard the mothership, dumped into holding tanks and held, sorted, weighed, and processed in much the same manner as is done on a catcher/processor. Therefore, assessment of the composition of the catch and obtaining information needed by the vessel operator to assign the catch to a CDQ group or the mothership sector is not available until after the catch is weighed and the salmon sorted, identified, and counted on the mothership.
To maintain consistency with the revisions made for time limits that apply to the catcher/processors, NMFS also revised the final rule that governs time limits for recording the CDQ group number in the catcher vessel's DFL and the mothership's DCPL. NMFS revised the final rule, at § 679.5(c)(4)(ii)(A)(
For the mothership DCPL, NMFS revised the final rule, at § 679.5(c)(6)(ii)(A), to add the statement that specific information must be recorded within 2 hours after completion of receipt of each groundfish delivery, except that the CDQ group number for catcher vessels harvesting pollock CDQ and delivering unsorted codends to a mothership must be recorded within 2 hours after the completion of weighing all catch from the haul on the mothership. Mothership operators may use either the DCPL or ELB. Mothership DCPLs do not require reporting of the scale weight of each delivery, so no revisions are needed.
Finally, current regulations require that the operator of a vessel using an ELB must notify NMFS by fax that he or she will be using an ELB. NMFS modified the final rule so that this requirement applies only to operators
Two hours after weighing the catch in the haul should provide sufficient time for the observer to sort, identify species, and count all of the salmon in a haul. However, if unusual circumstances prevent the observer from completing the count of all salmon in the haul within this time limit, vessel crew can assist the observer or count the salmon in the haul independent of the observer with enough detail to assess the catch composition from the haul for purposes of deciding whether to assign a haul to a CDQ group or to the catcher/processor sector. In addition, the time when the catch from a haul is completely weighed on the scale is readily available to the vessel operator from information stored and printed by the scale. Conversely, the time when an observer completes counting salmon would require separate and additional documentation by the observer.
While Chinook salmon bycatch in the pollock fishery may be a contributing factor in the decline of Chinook salmon, as the EIS analysis shows, the absolute
NMFS will monitor all salmon bycatch by each vessel in the pollock fishery through a census, 100 percent observer coverage, and an expanded biological sampling program. Annual reports and the proposed economic data collection program are designed to evaluate whether and how incentive plans influence a vessel's operational decisions to avoid Chinook salmon bycatch. If information becomes available to indicate that Amendment 91 is not providing the expected Chinook salmon savings, NMFS will work with the Council to take additional actions to minimize Chinook salmon bycatch to the extent practicable.
The EIS analysis shows that the number of Chinook salmon caught as bycatch in the pollock fishery is highly variable from year to year, from sector to sector, and even from vessel to vessel. Current information about Chinook salmon is insufficient to determine the reasons for high or low encounters of Chinook salmon in the pollock fishery or the degree to which encounter rates are related to Chinook salmon abundance or other conditions. The uncertainty and variability in Chinook salmon bycatch led the Council to create a program with a 60,000 Chinook salmon PSC limit, a performance standard, and IPAs. The 60,000 Chinook salmon PSC limit represents a reduction in bycatch from the recent high bycatch years and is approximately one-half of the 2007 Chinook salmon bycatch. The 60,000 Chinook salmon PSC limit assumes that the fleet can and will change behavior to avoid Chinook salmon or face closure the pollock fishery. The performance standard and the IPAs aim to ensure that the fleet will further change behavior to avoid Chinook salmon bycatch.
The final rule should contain an explanation of the criteria that NMFS intends to use to determine which of two or more entity applications will be selected to represent the catcher/processor sector. One criterion should be that an applicant must represent the majority (i.e., 75 percent) of the eligible vessel owners in that sector. By using these criteria, NMFS would authorize an entity with the broadest representation of participants. This super-majority threshold will ensure that the terms under which the entity is formed will reflect the views of the strong majority of participants but at the same time will prevent the creation of hold out opportunities that would result from a unanimous approval requirement. The rule should not require unanimous participation by the owners of every eligible vessel. This standard would give inappropriate leverage to participants with very little investment in the fishery and could disrupt the entire allocation and IPA process.
NMFS modified the final rule, at § 679.21(f)(8)(i)(C) and (D), to make it clear that NMFS will authorize only one entity to represent the catcher/processor sector and one entity to represent the mothership sector. NMFS also clarified that, under the 60,000 Chinook salmon PSC limit, the entity has to represent all IPA participating vessel owners because the allocation is for use by all IPA participating members of the sector, and the entity is responsible for managing the use of the allocation by all IPA participating members. Vessel owners that choose to opt-out of an IPA would not participate in the sector entity. NMFS added a requirement, at § 679.21(f)(8)(ii)(A), that the sector entity representative must affirm on the application form that each eligible vessel owner, from whom the applicant received written notification requesting to join the sector entity, has been allowed to join the sector entity subject to the terms and conditions that have been agreed on by, and are applicable to, all other parties to the sector entity. NMFS moved a similar requirement for IPA membership from the proposed language at § 679.21(f)(12)(ii) to the IPA application requirements at § 679.21(f)(12)(iii)(A) to better align the participation requirements for both applications. NMFS also added a requirement, at § 679.21(f)(12)(ii)(B), that vessels owners in the catcher/processor sector or mothership sector must be a member of the sector entity to join an IPA.
To address the issue of what would happen if NMFS received more than one sector entity application, NMFS added § 679.21(f)(8)(ii)(E) to the final rule to clarify that if more than one entity application is submitted to NMFS, NMFS will approve the application for the entity that represents the most eligible vessel owners in the sector. At § 679.21(f)(8)(ii)(D), NMFS changed the deadline for the entity application from November 1 to October 1 to coincide with the deadline for the IPA application. NMFS added § 679.21(f)(8)(ii)(F) to the final rule to enable vessel owners to join an approved sector entity by December 1 of each year, so that the entity can represent all eligible vessels in the sector and receive a transferable PSC allocation.
NMFS disagrees that the accompanying table should be deleted. The table contains necessary information for participants to understand how NMFS will calculate the percent of Bering Sea pollock used for each AFA permitted vessel and CDQ group in determining whether an IPA meets the minimum participation requirement.
However, NMFS added a requirement to the final rule to clarify requirements associated with a CDQ group's participation in an IPA. To receive a transferable Chinook salmon PSC allocation under the 60,000 PSC limit, a CDQ group must participate in an approved IPA. If a CDQ group is participating in an IPA, it cannot also participate in the opt-out fishery because the Chinook salmon allocation to a CDQ group cannot be subdivided based on the participation of its partner vessels in an approved IPA. Therefore, to implement the Council's intent and to address this comment submitted by five of the six CDQ groups, NMFS added a requirement in the final rule, at § 679.21(f)(12)(ii)(C), that states, for a CDQ group to be a member of an IPA, the CDQ group must list in the IPA each vessel harvesting Bering Sea pollock CDQ on behalf of that CDQ group that will participate in that IPA.
Additionally, the final rule requires the IPA representative to submit an annual report to the Council that will be the primary tool through which the Council will evaluate whether its goals for the IPAs are being met. Also, the proposed economic data collection program that the Council and NMFS are developing is designed to provide quantitative information to evaluate how an IPA influences a vessel's operational decisions to avoid Chinook salmon bycatch. See response to comment 44.
The proposed economic data collection program, once implemented, would provide information to the analysts and the Council for determining the effectiveness of the IPAs. The data collection program will focus on (1) evaluating the effectiveness of the IPA incentives, the PSC limits, and the performance standard in terms of minimizing salmon bycatch in times of high and low levels of salmon abundance, and (2) evaluating how Amendment 91 affects where, when, and how pollock fishing and salmon bycatch occur. The proposed data collection program would also provide data for NMFS and the Council to study and verify conclusions drawn by industry in the IPA annual reports. Due to the complex nature of economic data collection, the data collection program will be implemented after Amendment 91.
By design, IPAs are adaptive and can be modified as necessary. The IPAs may be amended in response to the Council's review to better achieve the program goals. Furthermore, if analysis prepared after the incentive plans are in effect demonstrates that the Council's goals are not being met, then NMFS and the Council could re-initiate analysis of alternative Chinook salmon bycatch management measures and recommend revised or new management measures in the future.
The EIS analyzes the environmental impacts of Chinook salmon bycatch at the 60,000 and 47,591 Chinook salmon PSC limits. This analysis provides the best available information on the predicted impacts of bycatch at these levels because these PSC limits are the maximum amount of bycatch that could be caught in any given year. The EIS discusses the function of the sector-level performance standard to prevent each sector from exceeding its portion of 47,951 in more than three years in any seven consecutive years. Note that since the performance standard is on a sector basis, if a given sector exceeded its performance standard and fished up to its PSC allocation, total bycatch would still be below 60,000 Chinook salmon. Bycatch could only reach 60,000 Chinook salmon in a given year if each sector fished up to its PSC allocation. Therefore, the performance standard is the tool that will prevent bycatch from exceeding, on average, the historical 10-year average of 47,591 Chinook salmon.
The EIS makes no assumptions as to whether the IPAs will be effective; rather, the IPA component is an innovative approach that is designed to provide incentives for each vessel to avoid bycatch at all times with the goal of reducing bycatch below the PSC limits. The requirements for an IPA are performance based (
Additionally, requiring, as the comment suggests, that fishery participants finalize an IPA years before it would be used in order for it to be analyzed would remove the adaptive nature of the IPAs and therefore remove some of its effectiveness. And, doing so would not have changed the analysis of the environmental impacts.
Additionally, while the requirement for a census of salmon will be the same for catcher/processors, motherships, and shoreside processors, the duties of an observer differ. The observers aboard catcher/processors and motherships must conduct species composition sampling while the sorting of catch is occurring. Therefore, observers may not be able to monitor the sorting at all times due to their other duties. Video monitoring is required to verify all salmon are sorted from the catch into the appropriate storage container prior to entering the processing area of the factory and remain in the storage container until removed under the direction of the observer. The primary duties for observers assigned to shoreside processors differ from the observer duties on a catcher/processor or mothership. While the offload is occurring at a shoreside processor, observers ensure that all salmon are properly sorted from the catch and are not required to complete other duties during an offload.
State of Alaska fish tickets document the harvest of fish sold, discarded, or retained by the fisherman for personal use. The information collected includes species composition, weight, gear used, date harvested, who caught the fish, processor's license code, and other information specific to each fishery. As records of purchase between the processors and the fishermen, fish ticket data are confidential. The owners of fish tickets can request fishing records from any local office of ADF&G. In order to receive a vessel's catch history, vessel owners that are not also owners of the fish tickets must obtain confidentiality wavers. AFG&G clears the waivers prior to releasing the certified fish tickets.
Following the passage of the AFA by Congress in 1998, NMFS compiled the Official AFA Records for each vessel potentially qualifying for an AFA permit. As specified at § 679.4(l), the information included vessel ownership, documentation of harvests made by vessels during the AFA qualifying periods, vessel characteristics, and documented amounts of pollock processed by pollock processors during the AFA qualifying period. For inshore catcher vessels, individual catch histories were required to determine fishery eligibility and annual catch allocations under the AFA. NMFS relied on State of Alaska fish tickets to establish a comprehensive account of all groundfish catch by catcher vessel because fish tickets are required for any groundfish landed in State waters or delivered to plants or processing vessels operated in State waters. See response to comment 54.
Since the 2000 directed pollock fishing season, the catch histories of individual AFA eligible vessels have been used to calculate each cooperative's percentage allocation of the inshore sector's portion of the TAC. NMFS converts individual vessel catch histories into annual quota share percentages assigned to each vessel in a process described in regulation at § 679.62(a). The annual Bering Sea pollock allocation to each inshore cooperative is equal to the aggregated member vessel quota share percentages. The resulting cooperative percentages are then applied to the inshore sector's portion of the Bering Sea pollock TAC to determine each cooperative's pollock allocations.
Each year NMFS announces the harvest specification for the directed pollock fishery in the Bering Sea subarea. NMFS posts the sum of member vessel's official catch histories, the percentage of inshore sector allocation, and the corresponding allocation for each inshore pollock cooperative and open access fishery, should one exist. These tables are posted on the Alaska Region Web site (
NMFS previously provided an appeals process under which the owners of vessels and processors could appeal NMFS' determinations relating to AFA eligibility or AFA inshore cooperative allocations. Both the emergency interim rule (65 FR 380, January 5, 2000) and the final rule implementing AFA related amendments (67 FR 79692, December 30, 2002) established an appeals process similar to the process for appealing individual fishing quota and license limitation programs. Further, the regulations implementing the AFA-related FMP amendments provided an opportunity for, and placed the burden on, each applicant for AFA permits to correct any inconsistencies with the Official AFA Record, including catch histories.
Following that appeals process and in response to challenges by cooperatives, NMFS revised the Official AFA Record. NMFS responded to each challenge that provided individual vessel catch histories as evidence of discrepancies between cooperative records and the Official AFA Record. In order to verify claims, NMFS compared the cooperatives records to the Official AFA Record and, if necessary, observer information. In several cases this vetting process resulted in corrections to the Official AFA Record and the calculations of a cooperative's allocation of Bering Sea pollock TAC. Therefore, the quota share percentages in Column D of Table 47c, which were derived from the Official AFA Record, represent the best information available for allocating Chinook salmon PSC limits. The creation of another appeals process or other revisions to the pollock quota share allocations that were established under the AFA and relied on by NMFS to allocate pollock to cooperatives for the past 10 years are beyond the scope of this action. Should the Council determine that further refinement of Table 47c is necessary, additional rulemaking would be required.
Furthermore, NMFS disagrees that the percentages listed in Table 47c disadvantage vessel owners. Under Amendment 91, NMFS uses these vessel level percentage assignments listed in Table 47c to calculate the opt-out allocation at § 679.21(f)(4)(i)(C) or open access fishery allocation, the annual threshold amount at § 679.21(f)(6)(ii)(C), and the IPA minimum participation for catcher vessels under section § 679.21(f)(12)(i)(A)(
Since Amendment 91 divides the PSC limit between the A and B seasons and allocates the PSC limits to the sectors, cooperatives, CDQ groups, and, potentially, non-transferable allocations, the actual allocations are small and could be limiting to an entity that is trying to avoid bycatch in a high bycatch year. In these years, the flexibility of the higher PSC limit is necessary for each sector, cooperative, or CDQ group to harvest its pollock allocation. Thus, Amendment 91 provides the flexibility for the fleet potentially to harvest its TAC, which is one aspect of achieving optimum yield in the long term. Amendment 91 balances this flexibility with the performance standard and IPA components that provide incentives for each vessel to avoid Chinook salmon at all times while fishing for pollock.
Before any fishery may develop in the Arctic, an analysis must be provided of the historic commercial, sport, or subsistence harvest of the potential target and bycatch species and of the customary and traditional subsistence use patterns and evaluation of impacts on existing users. The combination of the FMP's policy and objectives with the Council's efforts to work with Native communities through its Rural Outreach Committee, should ensure concerns of Arctic communities are considered in Arctic fisheries management decisions. Arctic communities will be able to work with the Council to ensure sustainable management of Arctic marine fish resources.
Amendment 91, through the IPA component, is intended to result in Chinook salmon bycatch levels below the PSC limit and performance standard. Amendment 91 is a highly innovative program, however, there is inherent uncertainty over how effective this novel approach will be in minimizing bycatch over all years and at all levels of Chinook salmon and pollock abundance. NMFS will be monitoring the bycatch closely during the season, and if information becomes available to indicate that Amendment 91 is not providing the expected Chinook salmon savings, NMFS will work with the Council to take additional actions to minimize Chinook salmon bycatch to the extent practicable.
There is no permissible level of take for ESA-listed salmon. The take that is expected to occur with the action is established in the incidental take statement included in the biological opinion for this action. The incidental take statement determined that the amount or extent of expected take of ESA-listed Chinook salmon in the Bering Sea pollock fishery would be equivalent to the amount of ESA-listed Chinook salmon taken under the Chinook salmon PSC limits established by Amendment 91. If this level of take is exceeded, NMFS would be required to reinitiate section 7 consultation.
Information on the bycatch of ESA-listed stocks is from the recovery of coded-wire tagged fish from ESA-listed stocks. The only ESA-listed stocks that have been recovered from bycatch in the BSAI groundfish fisheries are from the Lower Columbia River and Upper Willamette River Chinook salmon stocks. All of these recoveries have been from the Bering Sea pollock fishery. The frequency of coded-wire tag recovery, in relation to the number of coded-wired tagged fish released from these stocks, indicates that the take of these ESA-listed stocks in the BSAI groundfish fisheries is rare.
The final rule will improve the collection of Chinook salmon information by requiring the retention, sorting, and counting of every Chinook salmon in every haul or fishing trip. Each Chinook salmon with a clipped adipose fin, indicating a coded-wire tag may be present, will be sampled for coded-wire tags. Because of this improved sampling process, NMFS will know the actual number of coded-wire tagged ESA-listed salmon taken by the Bering Sea pollock fishery.
The FMP is consistent with National Standard 9. National Standard 9 states that conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. This suggests the general goal is to avoid bycatch, but if it cannot be avoided, to minimize bycatch mortality. In other words, the fact that part (B) uses the word “avoided” suggests that that word accurately encapsulates the principal aim of part (A) of National Standard 9. Therefore, the FMP is consistent with National Standard 9's parameters, namely, that bycatch must be minimized to the extent practicable.
For Chinook salmon, Amendment 91, by design, provides the flexibility for the fleet potentially to harvest its TAC, which is one aspect of achieving optimum yield in the long term. Management of the other prohibited species is outside the scope of this action.
The EIS and RIR analyze the importance of Chinook salmon and pollock resources to fishing communities. Amendment 91 mitigates the impacts of status quo bycatch on Chinook salmon fishing communities and does not negatively affect the sustained participation of these fishing communities. Amendment 91 balances the needs of these communities with the ability to ascertain direct impacts to salmon streams from bycaught salmon. Understanding that this action cannot rebuild salmon streams, this action is likely to return more fish to these streams than many of the other alternatives considered by the Council. Amendment 91 also balances the needs of pollock fishing communities with need to minimize Chinook salmon bycatch in developing a program that provides the fleet the flexibility to harvest the pollock TAC.
Under National Standard 1, the optimum yield standard must be achieved over the long-run but not necessarily with precision each individual fishing year. Accordingly, as the preamble states, achieving optimum yield in the BSAI groundfish fishery does not equate to ensuring the ability to harvest the entire pollock TAC in any given year. For the BSAI management area, NMFS has established that the optimum yield is a range from 1.4 to 2.0 million metric tons (see § 679.20(a)(1)(i)). The record indicates that the regulations implementing Amendment 91 will not impede the BSAI groundfish fishery from meeting this standard.
The use of the term “fine” in § 313(g)(1) makes this provision a penalty-based program. A concern with a penalty-based program is that it creates greater problems of proof. To prove a violation, NOAA would have to demonstrate that the vessel in question had exceeded a specific bycatch level. Experience shows that successful prosecution of this type of case requires a commitment of agency resources that is difficult to sustain. Further, since an enforcement action can take a significant amount of time to bring to successful conclusion, there can be no certainty that any fine would be recovered quickly, or that even a successful prosecution would have a deterrent effect on Chinook salmon bycatch violators. In short, since the deterrent effect of the $25,000 fine per vessel per season under § 313(g)(1) is relatively inconsequential, and given the length of time and agency resources necessary for successful investigations and prosecutions of violations of a fine-per-salmon-penalty program, any prosecution(s) under that program would not likely result in swift enforcement of salmon bycatch exceedences or the collection of substantial and timely funds for research.
NMFS acknowledges that in 2007 and 2008, the United States did not meet the Yukon River escapement goals established with Canada by the Yukon River Agreement. However, in 2009 the United States exceeded these escapement goals, allowing for harvest sharing between the United States and Canada.
In February 2007, the Council began developing this action by creating the Salmon Bycatch Workgroup. The Salmon Bycatch Workgroup had members that represented western Alaska, held public meetings, and developed the first draft of the alternative set. When NMFS started the EIS scoping process on December 28, 2007, NMFS initiated the consultation process for this action by mailing letters to Alaska tribal governments, Alaska Native corporations, and related organizations. These letters provided information about the proposed action and the EIS process, and solicited consultation and coordination with Alaska Native representatives. The primary purpose of scoping is to obtain public comments on the range of alternatives and issues to analyze. Based on scoping, public testimony, and the workgroup recommendations, the Council refined the range of alternatives and developed the analysis over seven Council meetings, finalizing the alternative set and recommending the preferred alternative in April 2009.
Western Alaska residents commented that the Draft EIS and RIR poorly characterized subsistence and its importance to rural user groups. In response to these comments, NMFS, the Council, and the State of Alaska made significant improvements to this analysis for the final EIS and RIR (
As explained in the EIS, the Council conducted extensive outreach to Alaskan communities to explain this action, the supporting analysis, and the Council decision-making process. In conjunction with the Council's outreach activities, NMFS consulted with interested Alaska Native representatives, as described in the Tribal Summary Impact Statement.
Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 91 and this final rule are consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
An EIS and RIR were prepared to serve as the central decision-making documents for the Secretary of Commerce to approve, disapprove, or partially approve Amendment 91, and for NMFS to implement Amendment 91 through Federal regulations (
This final regulatory flexibility analysis (FRFA) incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action.
NMFS published the proposed rule on March 23, 2010 (75 FR 14016) with comments invited through May 7, 2010. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here.
NMFS received 71 letters of public comment on Amendment 91 and the proposed rule. None of these comments addressed the IRFA. NMFS received comment letters on Amendment 91 and the proposed rule from five of the six CDQ groups, which compose all the small entities directly affected by this action. In total six unique comments were received from the small entities. Two of these comments (17 and 34) resulted in revisions to the final rule from the proposed rule, while the other three (35, 36, 37, and 39) resulted in
This action applies only to those entities that participate in the directed pollock trawl fishery in the Bering Sea. These entities include the AFA-affiliated pollock fleet and the six CDQ groups that receive allocations of Bering Sea pollock.
The Regulatory Flexibility Act (RFA) requires consideration of affiliations among entities for the purpose of assessing if an entity is small for RFA purposes. The AFA pollock cooperatives are a type of affiliation. All of the non-CDQ entities directly regulated by this action were members of AFA cooperatives in 2008 and, therefore, NMFS considers them “affiliated” large (non-small) entities for RFA purposes.
Due to their status as non-profit corporations, the six CDQ groups are identified as “small” entities under the Small Business Administration's (SBA) guidelines. This action directly regulates the six CDQ groups, and NMFS considers the CDQ groups to be small entities for RFA purposes. As described in regulations implementing the RFA (13 CFR 121.103), the CDQ groups' affiliations with other large entities do not qualify them as large entities. Revenue derived from groundfish allocations and investments in BSAI fisheries enable these non-profit corporations to better comply with the burdens of this action, when compared to many of the large AFA-affiliated entities. Nevertheless, the only small entities that are directly regulated by this action are the six CDQ groups.
No duplication, overlap, or conflict between this action and existing Federal rules has been identified.
A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. “Significant alternatives” are those that achieve the stated objectives for the action, consistent with prevailing law, with potentially lesser adverse economic impacts on small entities, as a whole.
NMFS approved and is implementing Amendment 91 following recommendations by the Council. The EIS, RIR, and FRFA for this action considered four alternative management actions to the preferred alternative.
As the “preferred alternative,” Alternative 5 constitutes the “final rule.” The remaining four alternatives (in various combinations of options and suboptions) constitute the suite of “significant alternatives,” under the final rule, for RFA purposes. Each is addressed below. Please refer to section 2.5 of the EIS for the detailed impacts analyses. Data on cost and operating structure within the CDQ sector are unavailable, so a wholly quantitative evaluation of the size and distribution of burdens cannot be provided. The following is a summary of the contents of those more extensive analyses, specifically focusing on the aspects which pertain to small entities.
Under the status quo alternative (Alternative 1), the Chinook Salmon Savings Area, established by Amendment 84 to the FMP, creates separate non-CDQ and CDQ Chinook salmon PSC limits. NMFS closes the Chinook Salmon Savings Area upon attainment of the non-CDQ Chinook salmon PSC limit. The CDQ Program receives allocations of 7.5 percent of the Chinook salmon PSC limit (or 2,175 Chinook salmon) as PSQ reserve. NMFS further allocates PSQ reserves among the six CDQ groups, based on a recommendation by the State of Alaska in 2005. The State of Alaska recommended that the percentage allocation of Chinook salmon PSQ and non-Chinook salmon PSQ among the CDQ groups be the same as the CDQ groups' percentage allocations of pollock. The percentage allocation of Chinook salmon PSQ by CDQ group is as follows: Aleutian Pribilof Island Community Development Association (APICDA) 14 percent, Bristol Bay Economic Development Corporation (BBEDC) 21 percent, Central Bering Sea Fisherman's Association (CBSFA) 5 percent, Coastal Villages Region Fund (CVRF) 24 percent, Norton Sound Economic Development Corporation (NSEDC) 22 percent, and Yukon Delta Fisheries Development Association (YDFDC) 14 percent. Allocations of salmon PSQ to the CDQ groups are transferable among the CDQ groups.
Unless exempted because of participation in the VRHS ICA, a CDQ group is prohibited from directed fishing for pollock in the Chinook Salmon Savings Area when the Chinook salmon PSQ is reached. As described earlier in the preamble to this final rule, the VRHS ICA provides real-time salmon PSC information, so that the fleet can avoid areas of high Chinook salmon interception rates. The fleet voluntarily started the VRHS in 2002 for Chinook salmon, and in 2008 NMFS approved the regulations implementing Amendment 84 to the BSAI FMP. In 2008 and 2009, all CDQ groups were voluntarily participating in an ICA, so they were exempt from the closure of the Chinook Salmon Savings Area.
Alternative 1 would likely impose the least burden on the CDQ groups, because it does not impose a Chinook salmon PSC limit that could prevent the full harvest of their respective pollock allocations. While the annual reports indicate that the VRHS ICA has reduced Chinook salmon encounter rates compared to what they would have been without the ICA, the highest historical Chinook salmon bycatch occurred in 2007, when the ICA was in effect under an exempted fishing permit. This high level of bycatch indicates that the status quo management measures, despite their giving the pollock fleet the tools to reduce salmon bycatch, contain no effective upper limit on the amount of Chinook salmon bycatch taken in the fishery. NMFS and the Council remain concerned that the status quo management has the potential for high amounts of Chinook salmon bycatch as experienced in 2007.
The hard cap alternative (Alternative 2) would establish an upper limit to Chinook salmon bycatch in the pollock fishery. A range of suboption caps, from 29,323 to 87,500 Chinook salmon, were considered, based on various averages of Chinook salmon bycatch in the pollock fishery over a range of historical year combinations from 1997 through 2006. Analysis in sections 6.10.3 and 7.3 of the RIR examined the potential impacts on CDQ groups over this range. All Chinook salmon caught by vessels participating in the pollock fishery would accrue toward the cap. Under this alternative, upon reaching a Chinook salmon PSC limit, all directed pollock fishing would stop, regardless of potential forgone pollock harvests.
As described in the EIS section 2.2, this alternative includes several different options for management of a PSC limit, including separate PSC limits for the CDQ Program and the remaining AFA sectors, and hard caps divided by season, by sector, or a combination of both. In addition, the Council included an option to allow small entities (
Regardless of the hard cap level or allocation option chosen, the
Although this alternative would have established an upper limit to Chinook salmon bycatch, the hard cap alternative alone would fail to promote Chinook salmon avoidance during years of low salmon encounter rates and could result in a loss of revenues to CDQ groups, due to the closure of the fishery before the TAC has been harvested. Additionally, this alternative could create a race for Chinook salmon bycatch, similar to a race for fish in an open access fishery, which could increase the likelihood of wasteful fishing practices, a truncated directed fishing season, and forgone pollock harvest. The final rule retains components of Alternative 2 that will limit the burden on the small entities and further increase the flexibility for small entities through an IPA to minimize Chinook bycatch, to the extent practicable, at all levels of salmon or pollock abundance, while establishing an upper limit on Chinook salmon bycatch. Furthermore, the Council rejected Alternative 2 in partial response to public testimony described below.
During public comment, the Council received varying perspectives from CDQ participants on the costs and benefits of the range of PSC limits under consideration. NMFS received written comments from three of the six CDQ groups. While two CDQ groups (BBEDC and YDFDA) argued for a lower limit than this final rule provides, it was asserted by some, (including members of CVRF communities) that a hard cap higher than 68,000 Chinook salmon would increase the possibility that they could both harvest their full pollock allocation, under AFA, and receive full royalty and profit sharing payments from those allocations. The importance of the pollock resource, as a source of revenue for these small entities, indicates that any loss of pollock catch represents an increased economic burden on the CDQ groups (small entities). Public comment from CDQ members revealed the complexity of the issue for CDQ groups and communities. Although CDQ communities derive revenue from pollock and other BSAI fisheries, many of these CDQ stakeholders also depend on sustainable Chinook salmon runs for subsistence, cultural, and spiritual practices; therefore, this issue is not strictly a matter of finances. The Council ultimately rejected Alternative 2 in recognition that a hard cap alone would not achieve the Council's objectives for this action.
The modified area triggered closure alternative (Alternative 3) is similar to the status quo in that regulatory time and area closures would be invoked when specified Chinook salmon PSC limits are reached, but NMFS would remove the VRHS ICA exemptions to the closed areas. This alternative would incorporate new cap levels for triggered closures, sector allocations, and transfer provisions and could impose a lower burden on the CDQ groups than the preferred alternative. If triggered, NMFS would close only the seasonal areas, described in section 2.3 of the EIS, to directed pollock fishing. This alternative would not necessarily prevent small entities from the full harvest of their pollock TAC, because fishing effort outside of the closed areas could continue until the fishing season ended.
While Alternative 3 appears to reduce the economic impacts of forgone pollock revenue on small entities, when compared to the hard cap alternative, it does not provide any incentive to minimize Chinook salmon bycatch below the trigger amount. This alternative would shift the fleet's fishing effort to areas that may (or, as experienced in recent seasons, may not) have a lower risk of Chinook salmon encounters, but would not achieve the Council's objectives to promote Chinook salmon avoidance at the vessel level, establish a maximum limit on Chinook salmon bycatch in the pollock fishery, or hold the industry accountable for minimizing Chinook salmon bycatch.
At its June 2008 meeting, the Council developed a preliminary preferred alternative (Alternative 4) that contains components of Alternatives 1 through 3. Alternative 4 would set a hard cap for all vessels participating in the pollock fisheries and includes provisions for a voluntary ICA that must encourage Chinook salmon avoidance, at all levels of pollock and Chinook salmon abundance and encounter rates. This alternative would minimize the burden on small entities by setting a relatively high PSC limit (68,392 Chinook salmon), allowing participants in an ICA to share the burden of reducing Chinook bycatch, and allowing sector level PSC allocation transfers.
PSC allocations under Alternative 4 would limit the burden on the small entities by increasing their annual allocation of the Chinook salmon PSC limit. Under component 2 of this alternative, a sector's allocation of Chinook salmon bycatch would be calculated at 75 percent historical bycatch and 25 percent AFA pollock quota, with allowances for the CDQ sector. Estimates of historic bycatch in the CDQ sector were based on lower bycatch hauls when compared to non-CDQ sectors, due in part to agreement with the catcher/processor fleet contracted to harvest pollock on behalf of the CDQ sector. These historical bycatch estimates would have resulted in a lower initial allocation of Chinook salmon to CDQ groups, potentially increasing forgone revenue loss for small entities. Therefore, component 2 estimates the historic CDQ bycatch rates by blending CDQ bycatch rates with those of sectors harvesting pollock on behalf of the CDQ groups. The resulting higher PSC allocations would decrease the probability of forgone pollock revenue and the financial burden of this action on the CDQ groups. NMFS provides a description of the sector allocation in section 2.4 of the EIS (
During public comment on the Draft EIS, a different sector allocation was proposed to component 2 of Alternative 4. The suggested allocation would further reduce the burden on the small entities by allocating Chinook salmon based on 25 percent history and 75 AFA pollock allocation. Such an allocation would further benefit CDQ groups by increasing the PSC allocations to the CDQ groups above the amount provided under component 2 of Alternative 4. The Council considered and rejected this suggestion because such an allocation would not adequately represent the different fishing practices and patterns each sector utilizes to fully harvest their pollock allocations.
Despite the advantages of Alternative 4, the Council did not recommend this alternative, noting that it failed to meet the Chinook salmon conservation objective of this action by setting too high a PSC limit and by not establishing a performance standard to promote and ensure that the pollock fishery minimized Chinook salmon bycatch to the extent practicable. However, by unanimous vote, the Council selected a preferred alternative that retained component 2 from Alternative 4, which is designed to reduce the economic burden on the CDQ groups.
The preferred alternative (Alternative 5), which constitutes the “final action” under this element of the FRFA, reflects
The uncertainty and variability in Chinook salmon bycatch led the Council and NMFS to create an innovative and comprehensive management program, which limits the burden on CDQ groups through performance rather than design standards. Alternative 5 establishes a system of transferable PSC allocations and a performance standard to provide CDQ groups with the flexibility to decide how best to comply with the requirements of this action, given the other constraints imposed on the pollock fishery (
NMFS decided to implement the Council's recommended alternative because it best balances a suite of management measures that enable NMFS to manage Chinook salmon bycatch in the pollock fishery, while meeting all statutory, regulatory, and national policy requirements, goals, and objectives. Following a comprehensive review of the relevant environmental, economic, and social consequences of the alternatives, NMFS did not identify any additional alternatives to those analyzed in the EIS, RIR, and the FRFA that had the potential to further reduce the economic burden on small entities, while achieving the objectives of this action. The EIS section 2.6, contains a detailed discussion of alternatives considered and eliminated for further analysis (
In addition to revising some existing requirements, this rule will add recordkeeping and reporting requirements needed to implement the preferred alternative including those related to—
• Reporting Chinook salmon bycatch by vessels directed fishing for pollock in the Bering Sea;
• Applications to transfer Chinook salmon PSC allocations to another eligible entity;
• Development and submission of proposed IPAs and amendments to approved IPAs; and
• An annual report from each IPA representative documenting information and data relevant to the Chinook salmon bycatch management program.
The CDQ groups enter contracts with partner vessels to harvest their pollock allocations. Many of these vessels are at least partially owned by the CDQ groups. Although the accounting of Chinook salmon bycatch by partner vessels fishing under CDQ allocations will accrue against each respective CDQ group's seasonal PSC limit, most of the recordkeeping, reporting, and compliance requirements in the final rule apply to the vessels harvesting pollock, as well as the processors processing pollock delivered by catcher vessels. For example, under existing requirements at § 679.5, landings and production reports that include information about Chinook salmon bycatch are required to be submitted by processors.
NMFS clarifies that, in the future, if a CDQ group chooses to have pollock CDQ delivered to a shoreside processing plant, the catcher vessel used to harvest the pollock CDQ would need to designate the trip as a CDQ trip and comply with the retention and observer coverage requirements for catcher vessels, and the pollock would have to be delivered to a processor with an approved CMCP. These steps will ensure that all salmon bycatch from the pollock CDQ fisheries are properly counted and reported.
The CDQ groups already receive transferable Chinook and non-Chinook salmon PSQ allocations and have received such allocations under the CDQ Program since 1999. Therefore, NMFS will not require CDQ groups to apply for recognition as entities eligible to receive transferable Chinook salmon PSC allocations. The CDQ groups are already authorized to transfer their salmon PSQ allocations to and from other CDQ groups, using existing transfer applications submitted to NMFS.
New under this action is the authorization for the CDQ groups to transfer Chinook salmon PSC allocations to and from AFA entities, outside of the CDQ Program, including the AFA inshore cooperatives and the entities representing the AFA catcher/processor sector and the AFA mothership sector. Because of this new feature, CDQ groups will use a new application form to transfer Chinook PSC; all other transfers by CDQ groups will continue to be accomplished using the CDQ or PSQ Transfer Application. The existing application has been revised to provide this instruction.
Participation in an IPA is voluntary, but it is necessary to receive transferable allocations of a portion of the 60,000 Chinook salmon PSC limit. Therefore, it is likely that the CDQ groups will participate in one or more IPAs. A CDQ group may participate in an IPA with vessel owners from other AFA sectors, or the CDQ groups may develop an IPA that applies only to CDQ groups and vessels fishing on behalf of the CDQ groups. Each vessel harvesting pollock CDQ on behalf of a CDQ group must be listed in an approved IPA in which the CDQ group also is a participant, as required by § 679.21(f)(12)(ii)(C). If a CDQ group participates in an IPA, it will share the costs of developing and managing the IPA and meeting the reporting requirements. However, these costs are offset by the increased allocation of Chinook salmon PSC for IPA participants.
The professional skills necessary to prepare the reporting and recordkeeping requirements that will apply to the CDQ groups under this action include the ability to read, write, and understand English; the ability to use a computer and the Internet to submit electronic transfer request applications; and the authority to take actions on behalf of the CDQ group. Each of the six CDQ groups has executive and administrative staffs capable of complying with the reporting and recordkeeping requirements of this action and the financial resources to contract for any additional legal or technical expertise that they require to advise them.
NMFS has posted a small entity compliance guide on the NMFS Alaska Region Web site (
Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 note), the Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the American Indian and Alaska Native Policy of the U.S. Department of Commerce (March 30, 1995) outline the
Pursuant to Executive Order 13175, NMFS is obligated to consult and coordinate with federally recognized tribal governments and Alaska Native Claims Settlement Act regional and village corporations on a government-to-government basis. Specifically, Executive Order 13175 requires Federal agencies to: (1) Regularly consult and collaborate with Indian tribal governments and Alaska Native corporations in developing Federal regulatory practices that significantly or uniquely affect their communities; (2) reduce the imposition of unfunded mandates on Indian tribal governments; and (3) streamline the applications process for and increase the availability of waivers to Indian tribal governments.
Section 5(b)(2)(B) of Executive Order 13175 requires NMFS to prepare a tribal summary impact statement as part of the final rule. This statement must contain: (1) A description of the extent of the agency's prior consultation with tribal officials; (2) a summary of the nature of their concerns; (3) a statement of the extent to which the concerns of tribal officials have been met; and (4) the agency's position supporting the need to issue the regulation.
On December 28, 2007, when NMFS started the EIS scoping process for this action, NMFS mailed letters to Alaska tribal governments, Alaska Native corporations, and related organizations (“Alaska Native representatives”). The letter provided information about the proposed action, the EIS process, and solicited consultation and coordination with Alaska Native representatives. NMFS received 12 letters providing scoping comments from representatives of tribal governments and Alaska Native Corporations. These comments were summarized and included in the scoping report available on the NMFS Alaska Region Web site (
Once the Draft EIS was released on December 5, 2008, NMFS sent another letter to Alaska Native representatives announcing the release of the document and soliciting comments concerning the scope and content of the Draft EIS. The letter included a copy of the executive summary of the Draft EIS and provided information on how to obtain a printed or electronic copy of the Draft EIS. NMFS also mailed 23 copies of the Draft EIS to the Alaska Native representatives who had requested a copy or provided written comments to NMFS during scoping. NMFS received 14 letters of comment on the Draft EIS from representatives of tribal governments, tribal organizations, or Alaska Native corporations. These comments were summarized and responded to in the Comment Analysis Report (CAR) in Chapter 9 of the EIS and the comment letters are posted on the NMFS Alaska Region Web site (
NMFS conducted tribal consultations at the request of representatives from the following federally recognized tribes: The Nome Eskimo Community; the Chinik Eskimo Community (representing the village of Golovin); the Stebbins Community Association; the Native Village of Unalakleet; the Native Village of Kwigillingok; the Native Village of Kipnuk; the Alakanuk Tribal Council; the Native Village of Koyuk; the Native Village of Elim; the Native Village of Gambell; Native Village of Savoonga; Saint Michael; Shaktoolik; King Island; and the Native Village of Eyak.
NMFS held a tribal consultation in Nome, Alaska, on January, 22, 2009, in conjunction with a Council outreach meeting on Chinook salmon bycatch. Consulting in person with NMFS in Nome were representatives of the Nome Eskimo Community, the Chinik Eskimo Community, and the Native Village of Elim. Representatives of the Stebbins Community Association and the Native Village of Unalakleet participated by telephone. Council staff provided information on the Draft EIS, the alternatives, and the schedule for Council action. As part of the consultation, NMFS staff provided additional information and listened to the concerns and issues raised by the tribal representatives. The Nome Eskimo Community submitted a letter to NMFS with its comments during the tribal consultation. NMFS considered and responded to these comments in the CAR.
NMFS also held a tribal consultation teleconference on March 17, 2009, with the Native Village of Kwigillingok and the Bering Sea Elders Advisory Group, which has 37 tribes as members. The Regional Administrator provided information about the upcoming final action by the Council and the Draft EIS comment period and listened to the concerns and issues raised by the tribal representatives. The concerns expressed in the consultation were provided in a letter from the Bering Sea Elders Advisory Group.
On October 19, 2009, NMFS held a tribal consultation teleconference with the Alakanuk Tribal Council and the Native Village of Kipnuk. The Regional Administrator provided information on the Chinook and chum salmon bycatch in the Bering Sea in 2009 and listened to the concerns and issues raised by the tribal representatives.
Following the release of the EIS and RIR on December 7, 2009, NMFS sent another letter to Alaska Native representatives announcing the release of the EIS and providing information on how to participating in the rulemaking process. These letters included a copy of the EIS and RIR executive summary and provided information on how to obtain a printed or electronic copy of the EIS and RIR. NMFS also mailed 28 copies of the EIS and RIR to the Alaska Native representatives who requested a copy or who had provided written comments to NMFS. NMFS received one comment from an Alaska Native organization on the EIS that was summarized and responded to in the ROD (
On October 13, 2009, NMFS received a request from the Native Village of Unalakleet for tribal consultation on a number of fishery management issues regarding the Bering Sea. On February 16, 2010, NMFS conducted a tribal consultation in Unalakleet, Alaska, that included tribal representatives from the Native Village of Unalakleet, the Native Village of Koyuk, Stebbins Community Association, Native Village of Elim, the Native Village of Gambell, the Native Village of Savoonga, Saint Michael, Shaktoolik, and King Island. Among other issues, Amendment 91, general rulemaking and tribal consultation processes, salmon research, and fisheries bycatch management were discussed. The report NMFS prepared on this consultation is available on the NMFS Alaska Region Web site (
On March 24, 2010, NMFS continued the consultation process by sending another letter to all Alaska Native representatives when the Notice of Availability for Amendment 91 and the proposed rule were published in the
On May 18, 2010, NMFS held a tribal consultation teleconference with the Native Village of Eyak. The Regional Administrator provided information on Amendment 91 and Chinook salmon and listened to the concerns and issues raised by the tribal representatives.
The concerns expressed in consultations and reflected in written comments from tribal representatives and members center on four themes. First, Chinook salmon is vitally important to tribal members, and they suffer great hardships when Chinook salmon abundance is low. Second, tribal representatives attribute low Chinook salmon in-river returns directly to bycatch in the Bering Sea pollock fishery. Third, tribal members want Chinook salmon bycatch greatly curtailed by a hard cap of between zero and 32,000 Chinook salmon. Fourth, NMFS should improve its consultation process and include tribal perspectives early in decision-making. The Alaska tribal representatives' specific concerns raised during the consultations before the EIS was finalized were summarized and responded to in the EIS (
One of the primary factors in initiating this action was concern over the potential impacts of Chinook salmon bycatch in the Bering Sea pollock fishery on the return of Chinook salmon to western Alaska river systems and the recognition of the importance of Chinook salmon to the people in western Alaska. While the final program is not the program advocated by many Alaska Native representatives, it will minimize bycatch to the extent practicable.
To address their first concern that the draft analysis poorly characterized the subsistence fishery for Chinook salmon and its importance to rural user groups, NMFS, the Council, and the State of Alaska made significant improvements to the final EIS and RIR analysis to accurately document the importance of the subsistence way of life. The analysis includes the best available information from the ADF&G Office of Subsistence and current literature, and the traditional knowledge shared with NMFS and the Council in consultations and comments. This additional analysis was presented to the Council before it took final action to recommend Amendment 91 and was the analysis used by the agency to approve Amendment 91.
To address the second concern, the EIS applied the best available scientific information to conduct an adult equivalent analysis to determine the impacts of the pollock fishery on the annual returns of Chinook salmon to the river systems in Western Alaska. As explained in the EIS analysis, the degree to which levels of bycatch are related to declining returns of Chinook salmon is unknown. While Chinook salmon bycatch in the Bering Sea pollock fishery may be a contributing factor in the decline of Chinook salmon, the EIS analysis shows that the absolute numbers of the ocean bycatch that would have returned to western Alaska are expected to be relatively small due to ocean mortality and the large number of other river systems contributing to the total Chinook salmon bycatch. Although the reasons for the decline of Chinook salmon are not completely understood, scientists believe they are predominately natural. Changes in ocean and river conditions, including unfavorable shifts in temperatures and food sources, likely caused poor survival of Chinook salmon.
NMFS considered the recommended hard caps from tribal members, and the most recommended limit of 32,500 Chinook salmon was analyzed in the EIS and RIR. As discussed above, NMFS has determined Amendment 91 is a better program than a hard cap alone because it includes a mechanism, the IPA, that provides incentives for pollock fishing vessels to avoid Chinook salmon bycatch under any condition of pollock and Chinook salmon abundance in all years. Amendment 91 will achieve the conservation objectives of minimizing Chinook salmon bycatch to the extent practicable, but includes management measures that provide the fleet the flexibility to harvest the pollock TAC within the specified Chinook salmon PSC limits.
NMFS and the Council have made great efforts to conduct outreach, communication, and consultations with Alaska Native tribes, organizations, Alaska Native corporations, and communities. NMFS and the Council made significant efforts to involve Alaska Native tribes and western Alaska residents early in the process of developing Amendment 91. As explained in the EIS, the Council conducted extensive outreach to Alaskan communities to explain this action, the supporting analysis, and the Council decision-making process. In conjunction with the Council outreach, NMFS provided information to all tribes at each step in the process and consulted with interested Alaska Native representatives, as described in “A Description of the Extent of the Agency's Prior Consultation with Tribal Officials.”
In response to the tribal concerns, NMFS and the Council have also taken steps to improve these processes. In November 2009, NMFS conducted a workshop with interested tribal officials on tribal consultations and has responded to the recommendations made at that workshop. More information on NMFS' tribal consultation process is available on the NMFS Alaska Region Web site (
This final rule is needed to implement Amendment 91, a complex and innovative program to minimize bycatch to the extent practicable in the pollock fishery. This final rule is also needed to implement increased observer coverage and ensure that every salmon caught in the pollock fishery is counted so that NMFS has accurate salmon bycatch data. NMFS is also expanding the biological sampling to improve data on the origins of salmon caught as bycatch in the pollock fishery.
This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by the Office of Management and Budget (OMB). The collections are listed below by OMB control number.
Public reporting burden per response is estimated to average 30 minutes for
Public reporting burden per response is estimated to average 8 hours for the Application for Approval as an Entity to Receive Transferable Chinook Salmon PSC Allocation form and 15 minutes for the Application for Transfer of Chinook Salmon PSC Allocations.
Public reporting burden per response is estimated to average 20 minutes for the eLandings Catcher/Processor or Mothership Production Report.
This rule also contains new collection-of-information requirements subject to the PRA. These information collections have been submitted to and approved by the OMB.
Public reporting burden per response is estimated to average 30 minutes for the Groundfish/Halibut CDQ and Prohibited Species Quota (PSQ) Transfer Request.
Public reporting burden per response is estimated to average 40 hours for the AFA CMCP; 5 minutes for the Inspection Request for Inshore CMCP; 8 hours for the CMCP Addendum; 1 hour for the Electronic Monitoring System; and 2 hours for the Inspection Request for Electronic Monitoring System.
Public reporting burden per response is estimated to average 40 hours for the Application for Proposed Chinook Incentive Plan Agreement (IPA); 8 hours for the Chinook IPA annual report; 40 hours for the initial non-Chinook Inter-Cooperative Agreement (ICA); 8 hours for the non-Chinook ICA annual report; 12 hours the annual AFA cooperative report; 5 minutes for the IPA agent of service (this item will be removed because it is part of the ICA); and 5 minutes for the ICA agent of service (this item will be removed because it is part of the IPA).
Public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Reporting and recordkeeping requirements.
Alaska, Fisheries, Reporting and recordkeeping requirements.
44 U.S.C. 3501
The additions read as follows:
(b) * * *
16 U.S.C. 773
The addition and revisions read as follows:
(1)
(i)
(ii)
(6)
The revisions and additions read as follows:
(c) * * *
(4) * * *
(i) * * *
(B) Except as described in paragraph (f)(1)(iv) or (vii) of this section, the operator of a catcher/processor that is required to have an FFP under § 679.4(b) and that is using trawl gear to harvest groundfish is required to use a combination of catcher/processor trawl gear DCPL and eLandings to record and report daily processor identification information, catch-by-haul landings information, groundfish production data, and groundfish and prohibited species discard or disposition data. Under paragraph (f)(1)(vii) of this section, the operators of AFA catcher/processors or any catcher/processor harvesting pollock CDQ are required to use an ELB and no longer report using a DCPL.
(ii) * * *
(A) * * *
(6) * * *
(ii) * * *
(e) * * *
(10) * * *
(iii) * * *
(M)
(
(f) * * *
(1)
(iv)
(vii)
(2) * * *
(iii) * * *
(B) * * *
(
(7)
(i)
The additions and revisions read as follows:
(c) * * *
(1) [Reserved]
(d) * * *
(7)
(B) For the operator of a vessel required to have an observer sampling station described at § 679.28(d), to harvest or take deliveries of CDQ or PSQ species without a valid observer sampling station inspection report issued by NMFS under § 679.28(d)(8) on board the vessel.
(C) For the manager of a shoreside processor or stationary floating processor, or the manager or operator of a buying station that is required elsewhere in this part to weigh catch on a scale approved by the State of Alaska under § 679.28(c), to fail to weigh catch on a scale that meets the requirements of § 679.28(c).
(D) For the operator of a catcher/processor or a catcher vessel required to carry a level 2 observer, to combine catch from two or more CDQ groups in the same haul or set.
(E) For the operator of a catcher vessel using trawl gear or any vessel less than 60 ft (18.3 m) LOA that is groundfish CDQ fishing as defined at § 679.2, to discard any groundfish CDQ species or salmon PSQ before it is delivered to a processor, unless discard of the groundfish CDQ is required under other provisions or, in waters within the State of Alaska, discard is required by laws of the State of Alaska.
(F) For the operator of a vessel using trawl gear, to release CDQ catch from
(G) For the operator of a catcher/processor using trawl gear or a mothership, to sort, process, or discard CDQ or PSQ species before the total catch is weighed on a scale that meets the requirements of § 679.28(b), including the daily test requirements described at § 679.28(b)(3).
(H) For a CDQ representative, to use methods other than those approved by NMFS to determine the catch of CDQ and PSQ reported to NMFS on the CDQ catch report.
(ii)
(B) For any person on a vessel using fixed gear that is fishing for a CDQ group with an allocation of fixed gear sablefish CDQ, to discard sablefish harvested with fixed gear unless retention of sablefish is not authorized under § 679.23(e)(4)(ii) or, in waters within the State of Alaska, discard is required by laws of the State of Alaska.
(8)
(B)
(C)
(ii)
(B)
(C)
(
(
(
(
(
(k) * * *
(3) * * *
(vi)
(B) Allow sorting of fish at any location in the processing plant other than those identified in the CMCP under § 678.28(g)(7).
(C) Allow salmon of any species to pass beyond the last point where sorting of fish occurs, as identified in the scale drawing of the processing plant in the approved CMCP.
(8)
(ii)
(iii)
(iv)
(B) For a catcher vessel or catcher/processor, to start a fishing trip for pollock in the BS in the A season or in the B season if the vessel is fishing under a transferable Chinook salmon PSC allocation issued to an inshore cooperative, the entity representing the AFA catcher/processor sector, or the entity representing the AFA mothership sector under § 679.21(f) and the inshore cooperative or entity has exceeded its Chinook salmon PSC allocation for that season.
The revisions and additions read as follows:
(a) [Reserved]
(b) * * *
(2) * * *
(ii) After allowing for sampling by an observer, if an observer is aboard, sort its catch immediately after retrieval of the gear and, except for salmon prohibited species catch in the BS pollock fisheries under paragraph (c) of this section and § 679.26, return all prohibited species, or parts thereof, to the sea immediately, with a minimum of injury, regardless of its condition.
(3)
(6)
(c)
(1)
(2)
(A) Sort and transport all salmon bycatch from each haul to an approved storage location adjacent to the observer sampling station that allows an observer free and unobstructed access to the salmon (see § 679.28(d)(2)(i) and (d)(7)). The salmon storage location must remain in view of the observer from the observer sampling station at all times during the sorting of the haul.
(B) If, at any point during sorting of the haul or delivery for salmon, the salmon are too numerous to be contained in the salmon storage location, all sorting must cease and the observer must be given the opportunity to count the salmon in the storage location and collect scientific data or biological samples. Once the observer has completed all counting and sampling duties for the counted salmon, the salmon must be removed by vessel personnel from the approved storage location, in the presence of the observer.
(C) Before sorting of the next haul may begin, the observer must be given the opportunity to complete the count of salmon and the collection of scientific data or biological samples from the previous haul.
(D) Ensure no salmon of any species pass the observer sample collection point, as identified in the scale drawing of the observer sample station.
(ii) Operators of vessels delivering to shoreside processors or stationary floating processors must:
(A) Store in a refrigerated saltwater tank all salmon taken as bycatch in trawl operations.
(B) Deliver all salmon to the processor receiving the vessel's BS pollock catch.
(iii) Shoreside processors or stationary floating processors must:
(A) Comply with the requirements in § 679.28(g)(7)(vii) for the receipt, sorting, and storage of salmon from deliveries of catch from the BS pollock fishery.
(B) Ensure no salmon of any species pass beyond the last point where sorting of fish occurs, as identified in the scale drawing of the plant in the CMCP.
(C) Sort and transport all salmon of any species to the salmon storage container identified in the CMCP (see § 679.28(g)(7)(vi)(C) and (x)(F)). The salmon must remain in that salmon storage container and within the view of the observer at all times during the offload.
(D) If, at any point during the offload, salmon are too numerous to be contained in the salmon storage container, the offload and all sorting must cease and the observer must be given the opportunity to count the salmon and collect scientific data or biological samples. The counted salmon then must be removed from the area by plant personnel in the presence of the observer.
(E) At the completion of the offload, the observer must be given the opportunity to count the salmon and collect scientific data or biological samples.
(F) Before sorting of the next offload of catch from the BS pollock fishery may begin, the observer must be given the opportunity to complete the count of salmon and the collection of scientific data or biological samples from the previous offload of catch from the BS pollock fishery.
(3)
(4)
(e) * * *
(1) * * *
(vi)
(3) * * *
(i) * * *
(A) * * *
(
(
(7) * * *
(viii)
(A) From the effective date of the closure until April 15, and from September 1 through December 31, if the Regional Administrator determines that the annual limit of AI Chinook salmon will be attained before April 15.
(B) From September 1 through December 31, if the Regional Administrator determines that the annual limit of AI Chinook salmon will be attained after April 15.
(ix)
(f)
(2)
(i) An AFA sector will receive a portion of the 47,591 Chinook salmon PSC limit if:
(A) No Chinook salmon bycatch incentive plan agreement (IPA) is approved by NMFS under paragraph (f)(12) of this section; or
(B) That AFA sector has exceeded its performance standard under paragraph (f)(6) of this section.
(ii) An AFA sector will receive a portion of the 60,000 Chinook salmon PSC limit if:
(A) At least one IPA is approved by NMFS under paragraph (f)(12) of this section; and
(B) That AFA sector has not exceeded its performance standard under paragraph (f)(6) of this section.
(3)
(ii)
(iii)
(A) If a sector is managed under the 60,000 Chinook salmon PSC limit, the maximum amount of Chinook salmon PSC allocated to each sector in each season and annually is:
(B) If the sector is managed under the 47,591 Chinook salmon PSC limit, the sector will be allocated the following amount of Chinook salmon PSC in each season and annually:
(iv)
(B) If no entity is approved by NMFS to represent the AFA catcher/processor sector or the AFA mothership sector, then NMFS will manage that sector under a non-transferable Chinook salmon PSC allocation under paragraph (f)(10) of this section.
(v)
(vi)
(vii)
(viii)
(A) The Chinook salmon PSC allocations for each entity receiving a transferable allocation;
(B) The non-transferable Chinook salmon PSC allocations;
(C) The vessels fishing under each transferable or non-transferable allocation;
(D) The amount of Chinook salmon bycatch that accrues towards each transferable or non-transferable allocation; and
(E) Any changes to these allocations due to transfers under paragraph (f)(9) of this section, rollovers under paragraph (f)(11) of this section, and deductions from the B season non-transferable allocations under paragraphs (f)(5)(v) or (f)(10)(iii) of this section.
(4)
(ii)
(B) If all members of an inshore cooperative do not participate in an approved IPA, the amount of Chinook salmon that remains in the inshore sector's allocation, after subtracting the amount in paragraph (f)(4)(i)(C) of this section for the non-participating inshore cooperative, will be reallocated among the inshore cooperatives participating in an approved IPA based on the proportion each participating cooperative represents of the Chinook salmon PSC initially allocated among the participating inshore cooperatives that year.
(iii)
(iv)
(5)
(6)
(i)
(ii)
(iii) If NMFS determines that a sector has exceeded its performance standard by exceeding its annual threshold amount in any three of seven consecutive years, NMFS will issue a notification in the
(7)
(8)
(A)
(B)
(C)
(
(
(D)
(
(
(ii)
(A)
(B)
(
(
(
(C)
(D)
(E)
(F)
(
(
(iii)
(
(
(
(
(B) All vessel owners that are members of an inshore cooperative, or members of the entity that represents the catcher/processor sector or the mothership sector, may authorize the entity representative to sign a proposed IPA submitted to NMFS, under paragraph (f)(12) of this section, on behalf of the vessel owners that intend to participate in that IPA. This authorization must be included in the contract submitted to NMFS, under paragraph (f)(8)(ii)(B) of this section, for the sector-level entities and in the contract submitted annually to NMFS by inshore cooperatives under § 679.61(d).
(iv)
(A) Be authorized to receive and respond to any legal process issued in the United States with respect to all owners and operators of vessels that are members of an entity receiving a transferable allocation of Chinook salmon PSC or with respect to a CDQ group. Service on or notice to the entity's appointed agent constitutes service on or notice to all members of the entity.
(B) Be capable of accepting service on behalf of the entity until December 31 of the year five years after the calendar year for which the entity notified the Regional Administrator of the identity of the agent.
(v)
(9)
(A) Entities receiving transferable allocations under the 60,000 PSC limit may only transfer to and from other entities receiving allocations under the 60,000 PSC limit.
(B) Entities receiving transferable allocations under the 47,591 PSC limit may only transfer to and from other entities receiving allocations under the 47,591 PSC limit.
(C) Chinook salmon PSC allocations may not be transferred between seasons.
(ii)
(iii)
(B)
(
(C)
(
(D)
(10)
(ii) All vessels fishing under a non-transferable Chinook salmon PSC allocation, including vessels fishing on behalf of a CDQ group, will be managed together by NMFS under that non-transferable allocation. If, during the fishing year, the Regional Administrator determines that a seasonal non-transferable Chinook salmon PSC allocation will be reached, NMFS will publish a notice in the
(iii) For each non-transferable Chinook salmon PSC allocation, NMFS will deduct from the B season allocation any amount of Chinook salmon bycatch in the A season that exceeds the amount available under the A season allocation.
(11)
(ii)
(12)
(A)
(B)
(ii)
(B) For a vessel owner in the catcher/processor sector or mothership sector to join an IPA, that vessel owner must be a member of the entity representing that sector under paragraph (f)(8).
(C) For a CDQ group to be a member of an IPA, the CDQ group must sign the IPA and list in that IPA each vessel harvesting BS pollock CDQ, on behalf of that CDQ group, that will participate in that IPA.
(iii)
(A)
(B)
(
(
(
(
(
(
(
(
(
(
(iv)
(B)
(v)
(
(
(
(B)
(C)
(
(
(
(D)
(
(
(
(
(
(vi)
(vii)
(A)
(B)
(
(
(
(
(g)
(ii)
(2)
(i)
(B) The name, business mailing address, business telephone number, business fax number, and business e-mail address of the ICA representative.
(C) The ICA also must identify one entity retained to facilitate vessel bycatch avoidance behavior and information sharing.
(D) The ICA must identify at least one third party group. Third party groups include any organizations representing western Alaskans who depend on non-Chinook salmon and have an interest in non-Chinook salmon bycatch reduction but do not directly fish in a groundfish fishery.
(ii) The names, Federal fisheries permit numbers, and USCG documentation numbers of vessels subject to the ICA.
(iii) Provisions that dictate non-Chinook salmon bycatch avoidance behaviors for vessel operators subject to the ICA, including:
(A)
(B)
(C)
(D)
(E)
(iv) Internal monitoring and enforcement provisions to ensure compliance of fishing activities with the provisions of the ICA. The ICA must include provisions allowing any party of the ICA to bring civil suit or initiate a binding arbitration action against another party for breach of the ICA. The ICA must include minimum annual uniform assessments for any violation of savings area closures of $10,000 for the first offense, $15,000 for the second offense, and $20,000 for each offense thereafter.
(v) Provisions requiring the parties to conduct an annual compliance audit, and to cooperate fully in such audit, including providing information required by the auditor. The compliance audit must be conducted by a non-party entity, and each party must have an opportunity to participate in selecting the non-party entity. If the non-party entity hired to conduct a compliance audit discovers a previously undiscovered failure to comply with the terms of the ICA, the non-party entity must notify all parties to the ICA of the failure to comply and must simultaneously distribute to all parties of the ICA the information used to determine the failure to comply occurred and must include such notice(s) in the compliance report.
(vi) Provisions requiring data dissemination in certain circumstances. If the entity retained to facilitate vessel bycatch avoidance behavior and information sharing under paragraph (g)(2)(i)(C) of this section determines that an apparent violation of an ICA Chum Salmon Savings Area closure has occurred, that entity must promptly notify the Board of Directors of the cooperative to which the vessel involved belongs. If this Board of Directors fails to assess a minimum uniform assessment within 180 days of receiving the notice, the information used by the entity to determine if an apparent violation was committed must be disseminated to all parties to the ICA.
(3)
(4)
(i)
(ii)
(A) An estimate of the number of non-Chinook salmon avoided as demonstrated by the movement of fishing effort away from Chum Salmon Savings Areas, and
(B) The results of the compliance audit required at § 679.21(g)(2)(v).
(a) * * *
(10)
(h)
(c) * * *
(1) A vessel or processor retaining prohibited species under the PSD program must comply with all applicable recordkeeping and reporting requirements. A vessel or processor participating in the BS pollock fishery and PSD program must comply with applicable regulations at §§ 679.7(d) and (k), 679.21(c), and 679.28, including allowing the collection of data and biological sampling by an observer prior to processing any fish under the PSD program.
The revisions and additions read as follows:
(d) * * *
(7)
(i) A container to store salmon must be located adjacent to the observer sampling station;
(ii) All salmon stored in the container must remain in view of the observer at the observer sampling station at all times during the sorting of each haul; and
(iii) The container to store salmon must be at least 1.5 cubic meters.
(9) * * *
(i) * * *
(H) For catcher/processors using trawl gear and motherships, a diagram drawn to scale showing the location(s) where all catch will be weighed, the location where observers will sample unsorted catch, and the location of the observer sampling station including the observer sampling scale. For catcher/processors directed fishing for pollock in the BS or motherships taking deliveries from catcher vessels directed fishing for pollock in the BS, including pollock CDQ, the diagram also must include the location of the last point of sorting in the factory and the location of the salmon storage container required under paragraph (d)(7) of this section.
(g) * * *
(2) * * *
(i) AFA and CDQ pollock,
(7) * * *
(vi) * * *
(C) For shoreside processors or stationary floating processors taking deliveries from vessels directed fishing for pollock in the BS, including vessels directed fishing for pollock CDQ in the BS, the observation area must provide a clear, unobstructed view of the salmon storage container to ensure no salmon of any species are removed without the observer's knowledge.
(vii) * * *
(A)
(2) For shoreside processors or stationary floating processors taking deliveries from vessels directed fishing for pollock in the BS, including vessels directed fishing for pollock CDQ in the BS, the observer work station must be adjacent to the location where salmon will be counted and biological samples or scientific data are collected.
(C)
(ix) * * *
(A) Orienting new observers to the plant and providing a copy of the approved CMCP;
(x) * * *
(D) The location of each scale used to weigh catch;
(E) Each location where catch is sorted including the last location where sorting could occur; and
(F) For shoreside processors or stationary floating processors taking deliveries from vessels directed fishing for BS pollock, including vessels directed fishing for pollock CDQ in the BS, the location of the salmon storage container.
(j)
(1)
(i) The system must have sufficient data storage capacity to store all video data from an entire trip. Each frame of stored video data must record a time/date stamp in Alaska local time (A.l.t.). At a minimum, all periods of time when fish are flowing past the sorting area or salmon are in the storage container must be recorded and stored.
(ii) The system must include at least one external USB (1.1 or 2.0) port or other removable storage device approved by NMFS.
(iii) The system must use commercially available software.
(iv) Color cameras must have at a minimum 470 TV lines of resolution, auto-iris capabilities, and output color video to the recording device with the ability to revert to black and white video output when light levels become too low for color recognition.
(v) The video data must be maintained and made available to NMFS staff, or any individual authorized by NMFS, upon request. These data must be retained onboard the vessel for no less than 120 days after the date the video is recorded, unless NMFS has notified the vessel operator that the video data may be retained for less than this 120-day period.
(vi) The system must provide sufficient resolution and field of view to observe all areas where salmon could be sorted from the catch, all crew actions in these areas, and discern individual fish in the salmon storage container.
(vii) The system must record at a speed of no less than 5 frames per second at all times when fish are being sorted or when salmon are stored in the salmon storage location.
(viii) A 16-bit or better color monitor, for viewing all areas where sorting of salmon of any species takes place and the salmon storage container in real time, must be provided within the observer sampling station. The monitor must—
(A) Have the capacity to display all cameras simultaneously;
(B) Be operating at all times when fish are flowing past the sorting area and salmon are in the storage container; and
(C) Be securely mounted at or near eye level.
(ix) NMFS staff, or any individual authorized by NMFS, must be able to view any earlier footage from any point in the trip and be assisted by crew knowledgeable in the operation of the system.
(x) A vessel owner or operator must arrange for NMFS to inspect the electronic monitoring system and maintain a current NMFS-issued electronic monitoring system inspection report onboard the vessel at all times the vessel is required to provide an approved electronic monitoring system.
(2)
(3)
(i) A diagram drawn to scale showing all locations where salmon will be sorted, the location of the salmon storage container, the location of each camera and its coverage area, and the location of any additional video equipment must be submitted with the request form.
(ii) Any additional information requested by the Regional Administrator.
(4)
(5)
(6)
The addition and revisions read as follows:
(c) * * *
(1) Unless otherwise specified in paragraphs (c)(4) through (7) of this section, observer coverage is required as follows:
(4) * * *
(iv)
(B)
(5)
(i) * * *
(D)
(f) * * *
(2) * * *
(vi) The number of salmon taken by species and season, and list each vessel's number of appearances on the weekly “dirty 20” lists for non-Chinook salmon.
Office of the Deputy Under Secretary of Defense (Civilian Personnel Policy), (DUSD (CPP)), Department of Defense (DoD).
Notice.
Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, as amended (title 10, U.S.C. 2358 note) by section 1109 of NDAA for FY 2000 and section 1114 of NDAA for FY 2001, authorizes the Secretary of Defense to conduct personnel demonstration projects at DoD laboratories designated as STRLs. The above-cited legislation authorizes DoD to conduct demonstration projects to determine whether a specified change in personnel management policies or procedures would result in improved Federal personnel management. Section 1107 of Public Law 110–181, as amended by section 1109 of Public Law 110–417 requires the Secretary of Defense to execute a process and plan to employ the personnel management demonstration project authorities granted to the Office of Personnel Management under section 4703, title 5, U.S.C., at the STRLs enumerated in section 9902(c)(2) of title 5, U.S.C., as redesignated in Public Law 111–84, section 1105, and 73
This notice announces the approval of an amendment to modify existing demonstration project initiatives, to adopt flexibilities from other Science and Technology Reinvention Laboratories (STRLs) enumerated in section 9902(c)(2) of title 5, United States Code (U.S.C.), as redesignated in Public Law 111–84, section 1105, and to expand coverage of the AFRL Personnel Demonstration Project to AFRL employees in Business Management and Professional, Technician, and Mission Support occupations.
The adoption of the listed STRL demonstration project flexibilities and expansion of coverage of the personnel management demonstration project to the remaining eligible AFRL employees may be implemented beginning on the date of publication of this notice in the
The STRL demonstration projects are “generally similar in nature” to the Navy's China Lake Demonstration Project. The terminology “generally similar in nature” does not imply an emulation of various features, but rather “that the effectiveness of Federal laboratories can be enhanced by allowing greater managerial control over personnel functions,” * * * which * * * “can help managers to operate with more authority, responsibility, and skill to increase work force and organizational effectiveness and efficiency.”
In August 1994, a special action “Tiger Team” was formed by the Director of Science and Technology for Air Force Materiel Command in response to the proposed DoD legislation allowing reinvention laboratories to conduct personnel demonstration projects. The team was chartered to take full opportunity of this legislation and develop solutions that would alleviate or resolve many of the prevalent and well-documented Laboratory personnel issues. The team composition included managers from the original four Air Force Laboratories (which merged and became AFRL in August 1997), retired and current Laboratory directors, and subject matter experts from civilian personnel and manpower. This team developed 27 initiatives which together represented sweeping changes in the entire spectrum of human resource management for the Laboratory. Several initiatives were designed to assist the Laboratory in hiring and placing highly-qualified Scientist and Engineer (S&E) candidates to fulfill mission requirements. Others focused on developing, motivating, and equitably compensating employees based on their contribution to the mission. Initiatives to effectively manage workforce turnover and maintain organizational excellence were also developed. These 27 initiatives were endorsed and accepted in total by the four Laboratory Commanders.
After the authorizing legislation passed, a Demonstration Project Office with four employees was established in September 1994. Under the guidance of the Air Force Materiel Command Director of Science and Technology, the Project Office was charged with further developing and implementing the demonstration concept. Initially, the Project Office solicited volunteers from across the then four Laboratories and the servicing civilian personnel offices to staff six integrated product teams. Sixty civilian managers and employees from most of the four Laboratories' geographic locations and appropriate base level personnel offices worked for nine months to develop the detailed concept and implementation for each initiative.
After a thorough study, the original 27 initiatives were reduced to 20. Seven of these initiatives were published in the original
This
AFRL requested no waivers to veterans' preference statutes. Therefore, AFRL will fully comply with all veterans' preference act obligations.
The original AFRL Personnel Management Demonstration Project plan was published in 61 FR 60399, November 27, 1996. This Demonstration Project plan involves simplified, delegated position classification; two
Flexibilities published in this
Nine e-mails from nine commenters containing numerous comments were received regarding the AFRL Laboratory Demonstration Project,
In regard to the concern over advancement opportunities, the use of multiple pay pools allows employees to be assessed in an environment where a number of managers are aware of each employee's contribution relative to his/her peers. An AFRL-wide pay pool would be unwieldy and would not yield the checks and balances currently in place with the directorate-based pay pools.
To facilitate transparency and openness in the CCS process, there are two mandatory feedback sessions built into the CCS process. Supervisors are
The seamless broadband movement is facilitated by increases in score and basic pay based on the assessment of employee contributions, as well as consideration of many other aspects. As stated in the Broadband Movement section, “If an employee's contributions impact and broaden the scope, nature, intent and expectations of the position and are reflective of higher level factor descriptors, the classification of the position is updated accordingly.” In addition, an employee's basic pay must be at a level consistent with the higher broadband level. Therefore, two employees may receive the same score but broadband movement may not be appropriate for both employees. An employee's proven ability to maintain the higher level contribution, level of education, completion of Professional Military Education (PME), breadth of experience, and demonstrated leadership are all factors in a Pay Pool Manager's decisions when approving broadband movements. The mandatory feedback sessions and open lines of communication between employees and supervisors provide employees with expectations so that employees understand what is needed for a broadband movement. This provides transparency and openness in the seamless broadband movement process.
Additionally, the AFRL Corporate Board reviews the extensive evaluations that are conducted after each rating cycle and issues corporate guidance on managing pay pools to ensure consistency, greater transparency, etc. Bi-annual surveys of all employees are conducted and, based upon results, focus groups or additional surveys are accomplished in order to identify, and then correct, unintended consequences or negative perceptions. Supervisors are required to take mandatory courses on the CCS process, CCS software, and providing effective CCS feedback. Technology directorate-specific continuing training is also offered to employees.
In the Demonstration evaluation effort, only descriptive statistics are used at the pay pool level of analysis. The entire Laboratory Demonstration Project population is used for more complex statistical analyses that use confidence intervals. This minimizes the potential for any group of interest in a given analysis to be so small that the resulting confidence interval is so large as to mask important differences in results for the groups. AFRL senior leadership reviews CCS results on a yearly basis and is satisfied with the results of the statistical analysis.
The original Project was designed by the Department of the Air Force (AF), with participation of and review by the DoD and the Office of Personnel Management (OPM). The purpose was to achieve the best workforce for the Laboratory mission, prepare the workforce for change, and improve workforce quality. The Project framework addressed all aspects of the human resources life cycle model. There were three major areas of change: (1) Laboratory-controlled rapid hiring; (2) a Contribution-based Compensation System; and (3) a streamlined removal process.
Initially, the Project covered only professional S&E positions and employees. This
The purpose of the Project is to demonstrate that the effectiveness of DoD laboratories can be enhanced by allowing greater managerial control over personnel functions and, at the same time, expanding the opportunities available to employees through a more responsive and flexible personnel system. This Demonstration Project, in its entirety, attempts to provide managers, at the lowest practical level, the authority, control, and flexibility needed to achieve a quality Laboratory and quality products.
The success of the Demonstration Project for S&E personnel has convinced AFRL management that the same system should be implemented for the remaining AFRL workforce. The Laboratory Demonstration Project implemented a broadbanding structure that replaced the 15 grades under the GS classification structure. This flexibility has enabled management to offer competitive starting salaries and seamlessly progress employees through the broadband levels based on contribution to the mission. The CCS has provided management an effective, efficient, and flexible method for
The civilian GS personnel system has several major inefficiencies, which hinder management's ability to recruit and retain the best-qualified personnel. Line managers have only limited flexibility to administer personnel resources, and existing personnel regulations are often in conflict with management's ability to support world-class research. Current personnel action processes cause delays in recruiting, reassigning, promoting, and removing employees. AFRL received no hiring authorities with the initial Demonstration Project implementation. Laboratories that implemented their authorities at a later time received hiring flexibilities that AFRL now wishes to pursue.
The GS classification system requires lengthy, narrative, individual position descriptions, which have to be classified by the use of complex and often outdated position classification standards. The classification process under the AFRL Demonstration Project has been highly successful, can be accomplished quickly and efficiently, and has given managers control over their workforce.
The current RIF system, for both GS and demonstration project employees, does not adequately recognize contribution as a major criterion in RIF situations. The RIF rules are complex and difficult to understand and administer. The RIF process disrupts operations, due to displacement of employees within their competitive levels and in the exercise of bump and retreat rights.
The same flexibilities for attracting and retaining highly talented employees from which AFRL currently benefits for the S&E workforce should not be limited to the S&E career path. The success of the Laboratory is dependent on its total workforce not just S&E personnel; thus, the demonstration project flexibilities should be extended to the entire Laboratory workforce. The new authorities will provide additional management tools that will enable AFRL to attract and retain the best and brightest employees for all career paths.
The AFRL Demonstration Project has demonstrated that a human resource system tailored to the mission and needs of the Laboratory results in: (a) Increased quality of the workforce and the Laboratory products they produce; (b) increased timeliness of key personnel processes; (c) trended workforce data that reveals increased retention of “excellent contributors” and increased separation rates of “poor contributors;” and (d) increased employee satisfaction with the Laboratory.
There are approximately 5,025 employees assigned to AFRL, with the majority located in or at Arlington, Virginia; Brooks City Base, Texas; Edwards Air Force Base (AFB), California; Eglin AFB, Florida; Hanscom AFB, Massachusetts; Kirtland AFB, New Mexico; Rome, New York; Tyndall AFB, Florida; and Wright-Patterson AFB, Ohio. Employees are also located at sites around the world.
Of the 5,025 AFRL employees, approximately 2,630 are currently in the Demonstration Project. The National Federation of Federal Employees (NFFE) and the American Federation of Government Employees (AFGE) represent professional and nonprofessional employees at many sites within AFRL. At this time, there are approximately 140 employees in the NFFE and AFGE bargaining units that are in the Demonstration Project. AFRL is proceeding to fulfill its obligation to consult or negotiate with the unions, as appropriate, in accordance with 5 U.S.C. 4703(f) and 7117. AFRL plans to initially convert the non-bargaining unit workforce into the Project with the hope of successfully negotiating with the impacted unions to convert the remaining Business Management and Professional, Technician, and Mission Support workforce into the Project at a later date.
In determining the original scope of the Demonstration Project, primary consideration was given to the number and diversity of occupations within the Laboratory and the need for adequate development and testing of the Contribution-based Compensation System. Additionally, DoD human resource management design goals and priorities for the entire civilian workforce were considered. While the intent of this Project is to provide the AFRL Commander/Executive Director and subordinate supervisors with increased control and accountability for their total workforce, the decision was made to initially restrict development efforts to GS/GM positions within the professional S&E specialties.
With this expansion effort, a total of 155 occupational series are included in the Project. During the course of the Project, other series may be included or moved to a more appropriate career path. For instance, a path for physicians and dentists may be added to the Project at a later date.
The series included in the initial implementation of the Project were placed in the S&E career path (pay plan DR). The success of the Demonstration Project for the S&Es has proven that it is prudent to expand the flexibilities to the AFRL workforce in Business Management and Professional, Technician, and Mission Support occupations. This
For the expansion design, the AFRL Demonstration Project Office recruited volunteers from the 10 AFRL directorates. Most team members were drawn from the career fields being considered for expansion, although some engineers were on the team to assist with understanding the current authorities. The team considered existing AFRL authorities in addition to authorities and design elements of the other DoD Personnel Management Demonstration Project laboratories and other Federal alternative personnel systems.
Although some of the original initiatives addressed recruiting and hiring issues, the Demonstration Project was not able to implement hiring flexibilities with the original publication. Additionally, the RIF changes were denied at the last minute, leaving only a change in how additional service credit was awarded based on the CCS scores. This
At this time, AFRL is implementing a streamlined examining process as demonstrated in other Defense Personnel Management Demonstration Project laboratories. This applies to all positions in AFRL, with the exception of Senior Executive Service (SES), Scientific or Professional (ST), and broadband V positions and any examining process covered by court order. This authority includes the coordination of recruitment and public notices, the administration of the examining process, the certification of candidates, and selection and appointment consistent with merit system principles, to include existing authorities under title 5, U.S.C. and title 5, CFR. The “rule of three” is eliminated, similar to the authorities granted to: (1) Naval Research Laboratory (NRL), 64 FR 33970, June 24, 1999; (2) Naval Sea (NAVSEA) Systems Command Warfare Centers, 62 FR 64049, December 3, 1997; and (3) Communications-Electronics Research, Development, and Engineering Center (CERDEC), 66 FR 54871, October 30, 2001. When there are no more than 15 qualified applicants and no preference eligibles, all eligible applicants are immediately referred to the selecting official without rating and ranking. Rating and ranking are required only when the number of qualified candidates exceeds 15 or there is a mix of preference and nonpreference applicants. Statutes and regulations covering veterans' preference are observed in the selection process and when rating and ranking are required.
AFRL's Distinguished Scholastic Achievement Appointment Authority (DSAA) uses an alternative examining process which provides the authority to appoint individuals with undergraduate or graduate degrees through the doctoral level to professional positions up to the equivalent of GS–12 in series identified in the S&E career path. This enables AFRL to respond quickly to hiring needs for eminently qualified candidates possessing distinguished scholastic achievements. This flexibility is similar in nature to the authority granted to: (1) The Army Missile Research, Development, and Engineering Center (AMRDEC), 64 FR 12216, March 11, 1999; (2) Army Research Laboratory (ARL), 65 FR 3500, January 21, 2000; (3) Army Engineer Research and Development Center (ERDC), 64 FR 12216, March 11, 1999; and (4) NAVSEA, 62 FR 64064, December 3, 1997.
Candidates may be appointed provided they meet the minimum standards for the position as published in OPM's operating manual, “Qualification Standards for General Schedule Positions” and the candidate has a cumulative grade point average of 3.5 (on a 4.0 scale) or better in their field of study (or other equivalent score) or are within the top 10 percent of a university's major school of undergraduate or graduate studies, such as Business School, Law School,
A candidate's basic eligibility is determined using OPM's “Qualification Standards Handbook for General Schedule Positions.” Selective placement factors may be established in accordance with OPM's Qualification Handbook when judged to be critical to successful position contribution. These factors are communicated to all candidates for particular position vacancies and must be met for basic eligibility.
S&E (pay plan DR) and Business Management and Professional (pay plan DO) occupations: The DR and DO pay plans' broadband level I minimum eligibility requirements are consistent with the GS–07 qualifications. Broadband level II minimum eligibility requirements are consistent with the GS–12 qualifications. Broadband levels III and IV are single-grade broadband levels and consistent the minimum qualifications for the respective GS grades of 14 and 15.
Technician (pay plan DX): The DX pay plan broadband level I minimum eligibility requirements are consistent with the GS–01 qualifications. Broadband level II minimum eligibility requirements are consistent with the GS–05 qualifications. Broadband level III minimum eligibility requirements are consistent with the GS–08 qualifications. Broadband IV minimum eligibility requirements are consistent with the GS–11 qualifications.
Mission Support (pay plan DU): The DU pay plan broadband level I minimum eligibility requirements are consistent with the GS–01 qualifications. Broadband level II minimum eligibility requirements are consistent with the GS–05 qualifications. Broadband level III minimum eligibility requirements are consistent with the GS–07 qualifications. Broadband IV minimum eligibility requirements are consistent with the GS–09 qualifications.
The career-conditional appointment authority is not used under the Demonstration Project. Regular career appointments, temporary appointments, excepted service appointments, and modified term appointments are utilized. The modified term appointment is described below.
The Laboratory conducts many Research and Development (R&D) projects that range from three to six years. The current four-year limitation on term appointments imposes a burden on the Laboratory by forcing the termination of some term employees prior to completion of projects they were hired to support. This disrupts the R&D process and reduces the Laboratory's ability to serve its customers. Under the Demonstration Project, AFRL has the authority to hire individuals under modified term appointments. These appointments are used to fill positions for a period of more than one year but not more than five years when the need for an employee's services is not permanent. The modified term appointment differs from term employment as described in 5 CFR part 316 in that it may be made for a period not to exceed five years, rather than four years. In addition, the AFRL Commander/Executive Director and pay pool managers are authorized to extend a term appointment one additional year. Employees hired under the modified term appointment authority may be eligible for conversion to career appointments. To be converted, the employee must: (1) Have been selected for the term position under competitive procedures, with the announcement specifically stating that the individual(s) selected for the term position(s) may be eligible for conversion to career appointment at a later date; (2) served a minimum of two years of continuous service in the term position; and (3) have a current delta CCS rating greater than −0.3.
A new employee needs time and opportunities to demonstrate adequate contribution for a manager to render a thorough evaluation. The purpose of the extended probationary period or trial period is to allow supervisors an adequate period of time to fully evaluate an S&E employee's contribution and conduct. An extended probationary or trial period of three years applies to all newly hired S&E employees and SCEP students earning a scientific or engineering degree, including individuals entering the Demonstration Project after a break in service of 30 calendar days or more. Employees who enter the Demonstration Project with a
Employees on non-status appointments will be subject to the trial period required by their appointing authority. Upon conversion from a non-status appointment to a competitive service appointment, employees will be required to serve a three-year probationary period. However, employees serving on a modified term appointment will serve a three-year trial period. Upon conversion to competitive service, the period of employment served on a modified term appointment will be counted toward the completion of the extended probationary period.
Student Career Experience Program (SCEP) students earning a scientific or engineering degree are required to serve the extended probationary period upon non-competitive conversion to career appointment. The requirements in 5 CFR 315.802(c) apply when determining creditable service.
Current permanent Federal employees hired into the Demonstration Project are not required to serve a new probationary or trial period. Any employee appointed prior to the date of this
Probationary periods for employees in other career paths remain unchanged.
Aside from extending the time period, all other features of the current probationary or trial period are retained including the potential to remove an employee without providing the full substantive and procedural rights afforded a non-probationary employee when the employee fails to demonstrate proper conduct, competency, and/or adequate contribution during the extended probationary period.
When terminating probationary or trial employees, AFRL provides employees with written notification of the reasons for their separation and provides the effective date of the action.
Under GS rules, details and temporary promotions to higher graded positions cannot exceed 120 days without being made competitively. AFRL may effect details to higher broadband level positions and temporary promotions of not more than one year within a 24-month period without competition, with the ability to extend one additional year, to positions within the Demonstration Project. This is similar to the authority granted to the NRL in 64 FR 33970, June 24, 1999.
Management has authority to establish appropriate basic pay for employees moving within and into the Demonstration Project through internal and external competitive and non-competitive authorities. The basic pay of newly hired personnel entering the Demonstration Project is set at a level consistent with the expected contribution of the position based on the individual's academic qualifications, competencies, experience, scope and level of difficulty of the position, and/or expected level of contribution. Pay pool managers may establish specific pay setting criteria. Basic pay is limited to that equal to GS–15, step 10. A bonus may be considered in addition to or in lieu of a basic pay increase.
The authorities for retention, recruitment, and relocation incentives granted under 5 CFR part 575 have been delegated to the AFRL Commander/Executive Director and pay pool managers. Eligibility and documentation requirements, as described in 5 CFR part 575, are still in effect.
Recruitment of students is currently limited to the local commuting area because college students frequently cannot afford to relocate to accept job offers within the Laboratory and continue to attend school in a different commuting area. Therefore, AFRL requires the ability to expand recruitment to top universities and incentivize mobility by paying additional expenses to students accepting employment outside of their geographic area. The authority to pay relocation incentives is expanded to allow management to pay a bonus each time the co-operative education student returns to duty to the Laboratory.
Outside of the rating cycle, a manager may grant a basic pay increase to an entry-level Business Management and Professional and S&E employee (broadband I) whose contribution justifies accelerated compensation. This is similar to the authority granted to AMRDEC in 62 FR 34876, June 27, 1997.
The use of broadbanding provides a stronger link between pay and contribution to the mission of the Laboratory than what exists in the GS system. It is simpler, less time consuming, and not as costly to maintain. In addition, such a system is more easily understood by managers and employees, is easily delegated to managers, coincides with recognized career paths, and complements the other personnel management aspects of the Demonstration Project.
In the Demonstration Project, the broadbanding system replaces the GS structure. Initially, only S&E positions in AFRL were covered. This
Table 1 shows the four broadband levels in each career path, labeled I, II, III, and IV, with the exception of newly expanded broadband V for the S&E career path. The broadband levels are designed to facilitate pay progression and to allow for more competitive recruitment of quality candidates at differing rates within the appropriate broadband level(s). The S&E career path broadband level I includes the current GS–07 through GS–11; level II, GS–12 and GS/GM–13; level III, GS/GM–14; level IV, GS/GM–15; and level V, above GS/GM–15. The Business Management and Professional career path broadband level I includes the current GS–07 through GS–11; level II, GS–12 and GS/GM–13; level III, GS/GM–14; and level IV, GS/GM–15. The Mission Support career path broadband level I includes the current GS–01 through GS–04; level II, GS–05 and GS–06; level III, GS–07 and GS–08; and level IV, GS–09 and 10. The Technician career path broadband level I includes the current GS–01 through GS–04; level II, GS–05 through GS–07; level III, GS–08 through GS–10; and level IV, GS–11 and 12. Comparison to the GS grades was useful in setting the upper and lower dollar limits of the broadband; however, once employees are moved into the Demonstration Project, GS grades and steps no longer apply.
The broadbanding plan for the S&E occupational family is being expanded to include a broadband V to provide the ability to accommodate positions having duties and responsibilities that exceed the GS–15 classification criteria. This broadband is based on the Above GS–15 Position concept found in other STRL personnel management demonstration projects that was created to solve a critical classification problem. The STRLs have positions warranting classification above GS–15 because of their technical expertise requirements including inherent supervisory and managerial responsibilities. However, these positions are not considered to be appropriately classified as ST positions because of the degree of supervision and level of managerial responsibilities. Neither are these positions appropriately classified as SES positions because of their requirement for advanced specialized scientific or engineering expertise and because the positions are not at the level of general managerial authority and impact required for an SES position.
The original Above GS–15 Position concept was to be tested for a five-year period. The number of trial positions was set at 40 with periodic reviews to determine appropriate position requirements. The Above GS–15 Position concept is currently being evaluated by DoD management for its effectiveness and continued applicability to the current STRL scientific, engineering, and technology workforce needs. The degree to which AFRL plans to participate in this concept and develop classification, compensation and performance management policy, guidance, and implementation processes will be based on the final outcome of this evaluation. Additional guidance will be included in internal AFRL issuances.
The OPM occupational series scheme, which frequently provides well-recognized disciplines with which employees wish to be identified, is maintained and facilitates movement of personnel into and out of the Demonstration Project. Other series may be added to the Project as the need for new competencies emerges within the Laboratory environment.
The present system of OPM classification standards is used for the identification of proper series and occupational titles of positions within the Demonstration Project. OPM grading criteria are not used as part of the Demonstration Project. Rather, the appropriate career path broadband level factor descriptors are used to determine the broadband level. These same factor descriptors are used for the annual CCS employee assessments. For classification, only broadband level I descriptors are applied for each of the factors for a broadband level I position, for example. Therefore, the factors are sorted first by level and then by factor. (The broadband level of the position is reviewed and appropriately adjusted based on a yearly assessment of the employee's level of contribution to the organization in relation to these same factor descriptors, the position's duties, and the corresponding CCS score.) Specific broadband level factor descriptors for each career path are outlined in Appendix B and may be changed in future internal AFRL issuances, as needed.
The AFRL Laboratory Commander has delegated classification authority. This authority is delegated to the technology directors or pay pool managers, who may further delegate to not lower than one management level above the first-level supervisor of the position under review. The first-level supervisor provides classification recommendations. Personnel specialists provide on-going consultation and guidance to managers and supervisors throughout the classification process.
Under the Demonstration Project's classification system, the automated Statement of Duties and Experience (SDE) replaces the AF Form 1378, Civilian Personnel Position Description. The SDE includes a description of position-specific information; references the broadband level factor descriptors for the assigned broadband level and career path; and provides data element information pertinent to the position. Laboratory supervisors follow a computer assisted process to produce the SDE.
The AF presently uses skill code sets within the Defense Civilian Personnel Data System (DCPDS) as a means to reflect duties of current positions and employees' competencies and previous experiences. Each code represents a specialization within the occupation. Specializations are those described in classification or qualification standards and those agreed upon by functional managers and personnel specialists to be important to staffing patterns and career paths. These codes may be used to refer candidates for employment with the AF; for placement of current employees into other positions; and for training consideration under competitive procedures. To facilitate the movement of personnel into, out of, and within the Demonstration Project, the AF system of skills coding continues to be used, as long as it is required by the AF. Laboratory supervisors select appropriate skill code sets to describe the work of each employee through the automated SDE classification process, as described below.
The SDE is accomplished utilizing an automated system:
(a) The supervisor identifies the organizational location, SDE number, and the employee's name. The supervisor selects the appropriate occupational series, pay plan, broadband level, and title; the level factor descriptors corresponding to the broadband level that is most commensurate with the level of contribution necessary to accomplish the duties and responsibilities of the position; the CCS job category (if applicable); the functional classification code; and the DCPDS supervisory level.
The Demonstration Project initiatives include a dual track career progression. The dual track provides the option for Demonstration Project employees to pursue either the management track or the technical/functional track. CCS is structured to allow an individual to advance within his/her career by increasing his/her contributions to the
(b) The supervisor creates a brief description of position-specific information by typing free-form at the appropriate point. The supervisor chooses statements pertaining to physical requirements; competencies required to perform the work; and special licenses or certifications needed (other than APDP). Based on the supervisory level of the position, the system produces mandatory statements pertaining to affirmative employment, safety, and security programs.
(c) The supervisor selects up to three AF skill code sets (as long as used within the AF) appropriate to the position, in addition to other position data, such as position sensitivity, Fair Labor Standards Act (FLSA) status, drug testing requirements,
(d) The supervisor accomplishes the SDE with a recommended classification, then signs and dates the document. The SDE is sent to the individual in the organization with delegated classification authority for approval and classification, which is documented by that person signing and dating the SDE.
The computer assisted system incorporates definitions for the CCS job categories (if applicable), supervisory levels, occupational series as well as their corresponding skill code sets (if applicable), and the functional classification codes as appropriate. The FLSA status selection must be in accordance with OPM guidance. Management analysts and personnel specialists may advise Laboratory management as necessary.
The purpose of the Contribution-based Compensation System is to provide an effective, efficient, and flexible method for assessing, compensating, and managing the Laboratory workforce. It is essential for the development of a highly productive workforce and to provide management, at the lowest practical level, the authority, control, and flexibility needed to achieve a quality laboratory and quality products. CCS allows for more employee involvement in the assessment process, increases communication between supervisors and employees, promotes a clear accountability of contribution, facilitates employee career progression, provides an understandable basis for basic pay changes, and delinks awards from the annual assessment process. (Funds previously allocated for performance-based awards are reserved for distribution under a separate Laboratory awards program.) The CCS process described herein applies to broadband levels I through IV. The assessment process for broadband V positions will be documented in AFRL implementing issuances.
CCS is a contribution-based assessment system that goes beyond a performance-based rating system. That is, it measures the employee's contribution to the organization's mission, the contribution level, and how well the employee performed a job. Contribution is simply defined as the measure of the demonstrated value of what an employee did in terms of accomplishing or advancing the organizational objectives and mission impact. CCS promotes proactive basic pay adjustment decisions on the basis of an individual's overall contribution to the organization.
The same factor descriptors are used for classification and for the annual CCS employee assessments. For the CCS assessment process, the descriptors are sorted first by factor and then by level as shown in Appendix C. The appropriate career path factor descriptors (as shown in Appendix C) are used by the rating official to determine the employee's actual contribution score. Each factor has four levels of increasing contribution corresponding to the four broadband levels. Employees can score within, above, or below their broadband level, for example, a broadband level II employee could score in the broadband level I, III, or IV range. Therefore, for the CCS process, descriptors for all four levels of the career path factors are presented to better assist the supervisor with the employee assessment.
The annual CCS assessment scoring process (section III, E.3.) begins with employee input, which provides an opportunity to state the perceived accomplishments and level of contribution. Scores have a direct relationship with basic pay; therefore, the significance of an employee's actual score is not known until it is compared to his/her expected score. An employee's basic pay determines an expected score when plotted on the appropriate career path Standard Pay Line (SPL) (section III, E.2.). For instance, a Mission Support employee with a basic pay of $30,117 in 2009 would have an expected score of 2.25, while a Business Management and Professional employee with a basic pay of $69,738 would have the same expected score. The comparison between expected score and actual score provides an indication of equitable compensation, undercompensation, or overcompensation. (Typically, employees who are overcompensated are not meeting contribution expectations and may be placed on a Contribution Improvement Plan (CIP), which is described in further detail in section III, F.) Broadband levels in each career path have the same expected score range, as depicted in Table 2 below which also includes the basic pay ranges for each broadband level. As the general basic pay rates increase annually, the minimum and maximum basic pay rates of broadband levels I through IV for each career path are adjusted accordingly. Individual employees receive basic pay increases based on their assessments under the Contribution-based Compensation System. There are no changes to title 5, U.S.C., regarding locality pay under the Demonstration Project.
The broadbanding plan for the S&E occupational family is being expanded to include a broadband V to provide the ability to accommodate positions having duties and responsibilities that exceed the GS–15 classification criteria. This broadband is based on the Above GS–15 Position concept found in other STRL personnel management demonstration projects that was created to solve a critical classification problem. The STRLs have positions warranting classification above GS–15 because of their technical expertise requirements including inherent supervisory and managerial responsibilities. However, these positions are not considered to be appropriately classified as ST positions because of the degree of supervision and level of managerial responsibilities. Neither are these positions appropriately classified as SES positions because of their requirement for advanced specialized scientific or engineering expertise and because the positions are not at the level of general managerial authority and impact required for an SES position.
The original Above GS–15 Position concept was to be tested for a five-year period. The number of trial positions was set at 40 with periodic reviews to determine appropriate position requirements. The Above GS–15 Position concept is currently being evaluated by DoD management for its effectiveness and continued applicability to the current STRL scientific, engineering, and technology workforce needs. The degree to which AFRL plans to participate in this concept and develop classification, compensation and performance management policy, guidance, and implementation processes will be based on the final outcome of this evaluation. Additional guidance will be included in internal AFRL issuances.
The OPM occupational series scheme, which frequently provides well-recognized disciplines with which employees wish to be identified, is maintained and facilitates movement of personnel into and out of the Demonstration Project. Other series may be added to the Project as the need for new competencies emerges within the Laboratory environment.
The present system of OPM classification standards is used for the identification of proper series and occupational titles of positions within the Demonstration Project. OPM grading criteria are not used as part of the Demonstration Project. Rather, the appropriate career path broadband level factor descriptors are used to determine the broadband level. These same factor descriptors are used for the annual CCS employee assessments. For classification, only broadband level I descriptors are applied for each of the factors for a broadband level I position, for example. Therefore, the factors are sorted first by level and then by factor. (The broadband level of the position is reviewed and appropriately adjusted based on a yearly assessment of the employee's level of contribution to the organization in relation to these same factor descriptors, the position's duties, and the corresponding CCS score.) Specific broadband level factor descriptors for each career path are outlined in Appendix B and may be changed in future internal AFRL issuances, as needed.
The AFRL Laboratory Commander has delegated classification authority. This authority is delegated to the technology directors or pay pool managers, who may further delegate to not lower than one management level above the first-level supervisor of the position under review. The first-level supervisor provides classification recommendations. Personnel specialists provide on-going consultation and guidance to managers and supervisors throughout the classification process.
Under the Demonstration Project's classification system, the automated Statement of Duties and Experience (SDE) replaces the AF Form 1378, Civilian Personnel Position Description. The SDE includes a description of position-specific information; references the broadband level factor descriptors for the assigned broadband level and career path; and provides data element information pertinent to the position. Laboratory supervisors follow a computer assisted process to produce the SDE.
The AF presently uses skill code sets within the Defense Civilian Personnel Data System (DCPDS) as a means to reflect duties of current positions and employees' competencies and previous experiences. Each code represents a specialization within the occupation. Specializations are those described in classification or qualification standards and those agreed upon by functional managers and personnel specialists to be important to staffing patterns and career paths. These codes may be used to refer candidates for employment with the AF; for placement of current employees into other positions; and for training consideration under competitive procedures. To facilitate the movement of personnel into, out of, and within the Demonstration Project, the AF system of skills coding continues to be used, as long as it is required by the AF. Laboratory supervisors select appropriate skill code sets to describe the work of each employee through the automated SDE classification process, as described below.
The SDE is accomplished utilizing an automated system:
(a) The supervisor identifies the organizational location, SDE number, and the employee's name. The supervisor selects the appropriate occupational series, pay plan, broadband level, and title; the level factor descriptors corresponding to the broadband level that is most commensurate with the level of contribution necessary to accomplish the duties and responsibilities of the position; the CCS job category (if applicable); the functional classification code; and the DCPDS supervisory level.
The Demonstration Project initiatives include a dual track career progression. The dual track provides the option for Demonstration Project employees to pursue either the management track or the technical/functional track. CCS is structured to allow an individual to advance within his/her career by increasing his/her contributions to the organization and is not dependent upon which track an employee pursues. The Demonstration Project system is not hierarchical, meaning a supervisor's grade is based on the contributions he/she has made to the organization, and
(b) The supervisor creates a brief description of position-specific information by typing free-form at the appropriate point. The supervisor chooses statements pertaining to physical requirements; competencies required to perform the work; and special licenses or certifications needed (other than APDP). Based on the supervisory level of the position, the system produces mandatory statements pertaining to affirmative employment, safety, and security programs.
(c) The supervisor selects up to three AF skill code sets (as long as used within the AF) appropriate to the position, in addition to other position data, such as position sensitivity, Fair Labor Standards Act (FLSA) status, drug testing requirements,
(d) The supervisor accomplishes the SDE with a recommended classification, then signs and dates the document. The SDE is sent to the individual in the organization with delegated classification authority for approval and classification, which is documented by that person signing and dating the SDE.
The computer assisted system incorporates definitions for the CCS job categories (if applicable), supervisory levels, occupational series as well as their corresponding skill code sets (if applicable), and the functional classification codes as appropriate. The FLSA status selection must be in accordance with OPM guidance. Management analysts and personnel specialists may advise Laboratory management as necessary.
The purpose of the Contribution-based Compensation System is to provide an effective, efficient, and flexible method for assessing, compensating, and managing the Laboratory workforce. It is essential for the development of a highly productive workforce and to provide management, at the lowest practical level, the authority, control, and flexibility needed to achieve a quality laboratory and quality products. CCS allows for more employee involvement in the assessment process, increases communication between supervisors and employees, promotes a clear accountability of contribution, facilitates employee career progression, provides an understandable basis for basic pay changes, and delinks awards from the annual assessment process. (Funds previously allocated for performance-based awards are reserved for distribution under a separate Laboratory awards program.) The CCS process described herein applies to broadband levels I through IV. The assessment process for broadband V positions will be documented in AFRL implementing issuances.
CCS is a contribution-based assessment system that goes beyond a performance-based rating system. That is, it measures the employee's contribution to the organization's mission, the contribution level, and how well the employee performed a job. Contribution is simply defined as the measure of the demonstrated value of what an employee did in terms of accomplishing or advancing the organizational objectives and mission impact. CCS promotes proactive basic pay adjustment decisions on the basis of an individual's overall contribution to the organization.
The same factor descriptors are used for classification and for the annual CCS employee assessments. For the CCS assessment process, the descriptors are sorted first by factor and then by level as shown in Appendix C. The appropriate career path factor descriptors (as shown in Appendix C) are used by the rating official to determine the employee's actual contribution score. Each factor has four levels of increasing contribution corresponding to the four broadband levels. Employees can score within, above, or below their broadband level, for example, a broadband level II employee could score in the broadband level I, III, or IV range. Therefore, for the CCS process, descriptors for all four levels of the career path factors are presented to better assist the supervisor with the employee assessment.
The annual CCS assessment scoring process (section III, E.3.) begins with employee input, which provides an opportunity to state the perceived accomplishments and level of contribution. Scores have a direct relationship with basic pay; therefore, the significance of an employee's actual score is not known until it is compared to his/her expected score. An employee's basic pay determines an expected score when plotted on the appropriate career path Standard Pay Line (SPL) (section III, E.2.). For instance, a Mission Support employee with a basic pay of $30,117 in 2009 would have an expected score of 2.25, while a Business Management and Professional employee with a basic pay of $69,738 would have the same expected score. The comparison between expected score and actual score provides an indication of equitable compensation, undercompensation, or overcompensation. (Typically, employees who are overcompensated are not meeting contribution expectations and may be placed on a Contribution Improvement Plan (CIP), which is described in further detail in section III, F.) Broadband levels in each career path have the same expected score range, as depicted in Table 2 below which also includes the basic pay ranges for each broadband level. As the general basic pay rates increase annually, the minimum and maximum basic pay rates of broadband levels I through IV for each career path are adjusted accordingly. Individual employees receive basic pay increases based on their assessments under the Contribution-based Compensation System. There are no changes to title 5, U.S.C., regarding locality pay under the Demonstration Project.
A mathematical relationship between assessed contribution and basic pay compensation was defined in order to create the SPLs for each career path used in CCS. Initially, various mathematical relationships between each CCS score and the appropriate corresponding basic pay rate were examined and analyzed given the following systemic constraints. First, CCS necessitates that the relationship be described by a single equation that yields a reasonable correlation between basic pay rates in the broadband levels and those of the corresponding GS grade(s). Second, neither the equation nor its derivative(s) can exhibit singularities within or between levels. That is, the equation must be continuous, smooth, and well-defined across the broadband levels within each career path. Third, the relationship may not yield disincentives or inequities between employees or groups of employees; it must demonstrate equitable
Derivation of the initial S&E career path SPL was based on distributing the GS grades and steps of the incoming population across the corresponding broadband levels and plotting these against the GS basic pay rates. Although the data are not continuous, there is a linear trend. Each of these data points was weighted by the actual calendar year 1995 (CY95) population data for the Demonstration Laboratory. Using a “least squares error fit” analysis, the best straight line fit to this weighted data was computed.
Specifically, the equation of the original S&E SPL for CY95 was: BASIC PAY = $13,572 + ($15,415 × CCS SCORE). The SPL for CY96 was calculated from the SPL for CY95 plus the general pay increase (“G”) given to GS employees in January 1996. The equation for the CY96 SPL was: BASIC PAY = $13,843 + ($15,723 × CCS SCORE). The CY97 SPL was the CY96 SPL increased by the “G” for CY97.
Currently, the equation for the 2009 S&E SPL is BASIC PAY = $19,613 + ($22,278 × CCS SCORE). Figure 1 provides a pictorial representation of the DR 2009 SPL. Since the Business Management and Professional career path has the same banding structure as
For the other two career paths, Technician and Mission Support, a different approach was used to design the SPL. In order to encompass all employees across the career path, a straight-line slope-intercept equation was utilized. A CCS score of 1.0 was set as equivalent to the basic pay of a step one of the lowest GS grade in the career path, while a CCS score of 4.9 is equivalent to the basic pay of step ten of the highest GS grade. A straight line was then drawn between these two points, creating the SPL. Consequently, the 2009 Mission Support SPL is BASIC PAY = $6,862 + ($10,678 × CCS SCORE) and the 2009 Technician SPL is BASIC
For each of the career paths, the lines were extended to 0.75 and 5.25, in order to provide a broader range of basic pay rates (
Each SPL, and therefore, the basic pay rates, are increased by the amount of the general basic pay increase authorized each year. Continuing this calculation of the SPL maintains the same relationships between the basic GS pay scale and the SPL in the Demonstration Project. Locality pay is not included in the SPLs. Locality pay is added to the basic pay rate based upon each employee's official duty station.
The rating official is the first-level supervisor of record for at least 90 days during the rating cycle. If the current immediate supervisor has been in place for less than 90 days during the rating cycle, the second-level supervisor serves as the initial rating official. If the second-level supervisor is in place for less than 90 days during the rating cycle, the next higher level supervisor in the employee's rating chain conducts the assessment.
The annual assessment cycle begins on October 1 and ends on September 30 of the following year. At the beginning of the annual assessment period, the broadband level factor descriptors are provided to employees so that they know the basis on which their contribution is assessed.
A midyear review, in the March to April timeframe, is conducted for employees. At this time, the employee's professional qualities, competences, developmental needs, and mission contribution are discussed, as is future development and career opportunities. Additionally, supervisors are provided feedback on their supervisory qualities and skills. To highlight its importance, all feedback sessions are certified as completed by the rating official conducting the feedback session. While one documented formal midyear feedback is required, supervisors can/should conduct informal feedback sessions throughout the rating period. The preferable method for all feedback sessions is face-to-face. (Dealing with inadequate employee contribution is addressed in section III, F.)
At the end of the annual assessment period, employees summarize their contributions in each factor for their rating official. Employee written self-assessments are highly encouraged to ensure that all contributions accomplished during the rating cycle are identified to management for consideration. The rating official determines preliminary CCS scores using the employee's input and the rating official's assessment of the overall contribution to the Laboratory mission based on the appropriate broadband level factor descriptors. For each factor, the rating official places the employee's contribution at a particular broadband level (I, II, III, or IV) and general range (
The rating officials (
Factor scores are then averaged to give an overall CCS score. Each broadband range is defined for overall CCS scores from 0.75 to 5.25 as shown in Table 2. The maximum overall CCS score for broadband level IV is set at 5.25, to be consistent with the maximum overall CCS scores for other broadband levels (4.25 for broadband level III, 3.25 for broadband level II, and 2.25 for broadband level I). Therefore, when the average of CCS factor scores exceeds 5.25, the overall CCS score is set to 5.25 with the individual identified to upper management as having exceeded the maximum contribution defined by the broadband. The maximum compensation for each broadband is the basic pay corresponding with an n.25 overall CCS score (
Once the scores have been finalized, the pay pool manager approves the scores for the entire pay pool. Pay pool managers have the ability to look across the entire pay pool and may address anomalies through the appropriate management chain. However, CCS scores cannot be changed by managerial levels above the original group of supervisors that participated in the respective lowest level MoM. Contribution feedback and any training and/or career development needs are then discussed with the individual employees.
If, on October 1, the employee has served under CCS for less than 90 days, the rating official waits for the subsequent annual cycle to assess the employee. The employee is considered “presumptive due to time” and is assigned a score at the intersection of their basic pay and the SPL. Periods of approved, paid leave are counted toward the 90-day time period.
When an employee cannot be evaluated readily by the normal CCS assessment process due to special circumstances that take the individual away from normal duties or duty station (
(a) Recertify the employee's last contribution assessment; or
(b) assign a score at the intersection of the employee's basic pay and the SPL.
Basic pay adjustments,
Pay pool structure is under the authority of the Laboratory Commander/Executive Director, with each pay pool manager at the SES or full colonel level. The following minimal guidelines apply: (a) A pay pool is typically based on the organizational structure/functional specialty and should include a range of basic pay rates and contribution levels; (b) a pay pool must be large enough to constitute a reasonable statistical sample,
The amount of money available for basic pay increases within a pay pool is determined by the general increase (“G”) and an incentive amount (“I”) drawn from money that would have been available for step increases and career ladder promotions, previously utilized under the General Schedule. The incentive amount is set by the AFRL Corporate Board and is considered adjustable to ensure cost discipline over the life of the Demonstration Project. The dollars derived from “G” and “I”
The maximum compensation is limited to GS–15, step 10, basic pay. Any employee who's basic pay would exceed a GS–15, step 10, based on his or her overall CCS score, will be identified to upper management as having exceeded the maximum allowable compensation and will be paid a bonus to cover any difference between the GS–15, step 10, basic pay and the basic pay associated with his or her overall CCS score. Locality pay is added based upon each Demonstration Project employee's official duty station.
Employees' annual contributions are determined by the CCS process described in section E.3. Their CCS scores are then plotted on the appropriate SPL graph based on their current basic pay as shown in Figure 5. The position of those points in relation to the SPL provides a relative measure (Delta Y) of the degree of overcompensation or undercompensation for each employee. This permits all employees within a pay pool to be rank-ordered by ΔY, from the most undercompensated employee to the most overcompensated.
In general, those employees who fall below the SPL (indicating undercompensation, for example, employee X in Figure 5) should expect to receive greater basic pay increases than those who fall above the line (indicating overcompensation, for example, employee Z). A CCS assessment that falls on either rail is considered to be within the rails. Over time, employees will migrate closer to the standard pay line. The following provides more specific guidelines: (a) Those who fall above the upper rail (for example, employee Z) are given an increase ranging from zero to a maximum of “G;” (b) those who fall within the rails (for example, employee Y) are given a minimum of “G;” and (c) those who fall below the lower rail (for example, employee X) are given at least their basic pay times “G” and “I.” If the pay increase results in a broadband movement for employees who do not meet APDP requirements that portion of the increase that takes them beyond the top of the broadband is withheld. The pay pool manager may give a bonus to an employee as compensation, in whole or part, to cover any difference between the employee's current basic pay and the basic pay associated with their new overall CCS score. This may be appropriate in a situation when the employee's continued contribution at this level is uncertain. Bonus criteria will be documented in AFRL implementing issuances.
Each pay pool manager sets the necessary guidelines for the gradation of pay adjustments in the pay pool within these general rules: (1) Final decisions are standard and consistent within the pay pool; (2) are fair and equitable to all stakeholders; (3) maintain cost discipline over the Project life; and (4) be subject to review.
Under the Demonstration Project, non-competitive broadband movement may occur once a year during the CCS process, if certain conditions are met. A key concept of the Demonstration Project is that career growth may be accomplished by movement through the broadband levels by significantly increasing levels of employee contribution toward the AFRL mission. An employee's contribution is a reflection of his/her CCS score, which is derived from the factor descriptors. Because the factor descriptors are written at progressively higher levels of work and are the same factor descriptors used in the classification process, higher scores reflect that the employee's contribution is equivalent to the level associated with the score he/she is awarded. The broadband level of a position may be increased when an employee consistently contributes at the higher broadband level through increased expertise and by performing expanded duties and responsibilities commensurate with the higher broadband level factor descriptors. If an employee's contributions impact and broaden the scope, nature, intent and expectations of the position and are reflective of higher level factor descriptors, the classification of the position is updated accordingly. This form of movement through broadband levels is referred to as a seamless broadband movement and can only happen within the same career path; employees cannot cross over career paths through this process. The criteria is similar to that used in an accretion of duties scenario and must be met for an
The simplified classification and broadbanding structure allows management to assign duties consistent with the broadband level of a position without the necessity to process a personnel action and provides managers authority to move employees between positions within their current broadband level, at any time during the year. However, management also has the option to fill vacancies throughout the year using various staffing avenues, to include details, reassignments, or competitive selection procedures (as applicable and/or required) for competitive promotions or temporary promotions (typically used for filling supervisory positions). Employees may be considered for vacancies at higher broadband level positions consistent with the Demonstration Project competitive selection procedures.
Any resulting changes in broadband levels that occur through the CCS process are not accompanied by pay increases normally associated with formal promotion actions, but rather, they are processed and documented with a pay adjustment action to include appropriate changes/remarks (
The banding structure creates an overlap between adjacent broadband levels which facilitates broadband movement. Specifically, the basic pay overlap between two levels is defined by the basic pay rates at—to + 0.25 CCS around two whole number scores. For instance, the minimum basic pay for a broadband level I is that basic pay from the SPL corresponding to a CCS score of 0.75. And the maximum basic pay for broadband level I is that basic pay from the SPL corresponding to a CCS score of 2.25. The minimum basic pay for a broadband level II is that basic pay from the SPL corresponding to a CCS score of 1.75. And the maximum basic pay for broadband level II is that basic pay from the SPL corresponding to a CCS score of 3.25. Likewise, the minimum basic pay for level III would be the basic pay from the SPL corresponding to a CCS score of 2.75 and so on for the different broadband levels. This definition provides a basic pay overlap between broadband levels that is consistent with and similar to basic pay overlaps in the GS schedule.
Figure 6 shows the basic pay overlap areas between broadband contribution levels. These basic pay overlap areas are divided into three zones designated as CL (consideration for change to lower level), CH (consideration for change to higher level), and E (eligible for change to higher or lower level). All the E zones have the same width, 0.5 CCS, and height. The E zone is described as the box formed by the intersection of the integer + and−0.25 CCS lines and the SPL.
The E zones serve to stabilize the movement between adjacent broadband levels. This allows for annual fluctuations in contribution scores for people near the top or bottom of a level, without creating the need for repeated broadband level changes. An employee whose contribution score falls within an E zone is eligible for a change in broadband level but one should not be given unless the supervisor has a compelling reason to request the change to increase or reduce the employee's level.
Those who consistently achieve increased contribution assessments progress through their broadband level and find their basic pay climbing into
Under CCS, an employee may voluntarily request a pay reduction or a voluntary declination of a pay raise which would effectively place an overcompensated employee's pay closer to or below the SPL. Since an objective of CCS is to properly compensate employees for their contribution, the granting of such requests is consistent with this goal. Under normal circumstances, all employees should be encouraged to advance their careers through increasing contribution rather than being undercompensated at a fixed level of contribution.
To handle these special circumstances, employees must submit a request for voluntary pay reduction or pay raise declination during the 30-day period immediately following the annual payout or a CCS grievance decision and document the reasons for the request. Management must properly document all decisions to approve or disapprove such requests. This type of basic pay change is not considered to be an adverse personnel action.
An employee may grieve the assessment received under CCS, using the administrative grievance system. Non-bargaining unit employees, and bargaining unit employees covered by a negotiated grievance procedure which does not permit grievances over performance ratings, must file assessment grievances under administrative grievance procedures. Bargaining unit employees, whose negotiated grievance procedures cover performance rating grievances, must file assessment grievances under those negotiated procedures. Additional CCS grievance information to include the possible use of Alternative Dispute Resolution is documented in AFRL implementing issuances.
CCS is a contribution-based assessment system that goes beyond a performance-based rating system. Contribution is measured against factors, each having four levels of increasing contribution corresponding to the four broadband levels. Employees are plotted against the SPL based on their score and current basic pay, which determines the amount of overcompensation or undercompensation. When an employee's contribution plots in the area above the upper rail of the SPL (section III, E.3.), the employee is overcompensated for his/her level of contribution and is considered to be in the Automatic Attention Zone (AAZ).
This section addresses reduction in pay or removal of Demonstration Project employees based solely on inadequate contribution, as determined by the amount of overcompensation. The following procedures are similar to and replace those established in 5 CFR part 432 pertaining to performance-based reduction in grade and removal actions. Adverse action procedures under 5 CFR part 752 remain unchanged.
The immediate supervisor has two options when an employee plots in the AAZ. The first option is to write a memorandum for record documenting the employee's inadequate contributions. The supervisor states in writing the specifics on where the employee failed to contribute at an adequate level and provide rationale for not taking a formal action. Examples where this might be used is when an employee's contribution plots just above the upper rail of the SPL or extenuating circumstances exist that may have contributed to the employee's overall score and are expected to be temporary in nature. A copy of this memorandum is provided to the employee and to higher levels of management. The second option is to take formal action by placing the employee on a Contribution Improvement Plan (CIP), providing the employee an opportunity to improve. The CIP must inform the employee, in writing, that unless the contribution increases and is sustained at a higher level, the employee may be reduced in pay or removed.
The supervisor will afford the employee a reasonable opportunity (a minimum of 60 days) to demonstrate increased contribution commensurate with the duties and responsibilities of the employee's position. As part of the employee's opportunity to demonstrate increased contribution, management will offer appropriate assistance to the employee.
Once an employee has been afforded a reasonable opportunity to demonstrate increased contribution, but fails to do so, management has sole and exclusive discretion to initiate reduction in pay or removal. If the employee's contribution increases to a higher level and is again determined to deteriorate in any area within two years from the beginning of the opportunity period, management has sole and exclusive discretion to initiate reduction in pay or removal with no additional opportunity to improve. If an employee has contributed appropriately for two years from the beginning of an opportunity period and the employee's overall contribution once again declines, management will afford the employee an additional opportunity to demonstrate increased contribution before determining whether or not to propose a reduction in pay or removal.
An employee whose reduction in pay or removal is proposed is entitled to at least a 30-day advance notice of the proposed action that identifies specific instances of inadequate contribution by the employee on whom the action is based. Management may extend this advance notice for a period not to exceed an additional 30 days. Management will afford the employee a reasonable time to answer the notice of proposed action orally and/or in writing.
A decision to reduce pay or remove an employee for inadequate contribution may only be based on those instances of inadequate contribution that occurred during the two-year period ending on the date of issuance of the notice of proposed action.
Management will preserve all relevant documentation concerning a reduction in pay or removal which is based on inadequate contribution and make it available for review by the affected employee or designated representative. At a minimum, the records will consist of a copy of the notice of proposed action; the written answer of the employee or a summary thereof when the employee makes an oral reply; and the written notice of decision and the reasons therefore, along with any supporting material including documentation regarding the opportunity afforded the employee to demonstrate increased contribution.
When a reduction in pay or removal action is not taken because of contribution improvement by the employee during the notice period and the employee's contribution continues to be deemed adequate for two years from the date of the advanced written notice, any entry or other notation of the proposed action will be removed from management records relating to the employee, in accordance with applicable directives.
These provisions also apply to an employee whose contribution deteriorates during the year. In such instances, the group of supervisors who meet during the CCS assessment process may reconvene any time during the year to review an employee whose contribution is not appropriate for his or her basic pay and decide if the employee should be placed on a CIP.
Under the Demonstration Project, the AFRL Laboratory Commander/Executive Director and pay pool managers have the authority to offer retired or separated S&E, Business Management and Professional, Mission Support, and Technical employees voluntary assignments in the Laboratory. The Voluntary Emeritus Corps ensures continued quality research, mentoring, support, and program management while reducing the overall basic pay line by allowing higher paid employees to accept retirement incentives with the opportunity to retain a presence in the laboratory community. The program is beneficial during manpower reductions as senior personnel accept retirement and return to provide valuable on-the-job training or mentoring to less experienced employees. (This authority is similar in nature to that utilized by S&Es in AFRL and described in the CERDEC demonstration project plan, 66 FR 54871, October 30, 2001.)
This authority includes employees who have retired or separated from Federal service. Voluntary Emeritus Corps assignments are not considered employment by the Federal government (except for purposes of on-the-job injury compensation). Thus, such assignments do not affect an employee's entitlement to buyouts or severance payments based on an earlier separation from Federal service.
To be accepted into the Emeritus Corps, a volunteer must be recommended by a manager within the Laboratory. Everyone who applies is not automatically entitled to a voluntary assignment. The Laboratory Commander/Executive Director and/or pay pool manager must clearly document the decision process for each applicant (whether accepted or rejected) and retain the documentation throughout the assignment. Documentation of rejections will be maintained according to applicable records management requirements.
To encourage participation, the volunteer's Federal retirement pay (whether military or civilian) will not be affected while serving in a voluntary capacity.
Volunteers are not permitted to monitor contracts on behalf of the government or to participate on any contracts or solicitations where a conflict of interest exists.
An agreement is established between the volunteer, the pay pool manager, and the servicing Civilian Personnel Office. The agreement is reviewed by the local Staff Judge Advocate representative responsible for ethics determinations under the DoD Joint Ethics Regulation, DoD Directive 5500.7–R. Volunteers are not permitted to report for duty prior to finalization of the agreement, which will include, as a minimum:
(a) A statement that the voluntary assignment does not constitute an appointment in the Civil Service and is without compensation;
(b) the volunteer waives any and all claims against the Government because of the voluntary assignment except for purposes of on-the-job injury compensation as provided in 5 U.S.C. 8101(1)(B);
(c) volunteer's work schedule;
(d) length of agreement (defined by length of project or time defined by weeks, months, or years);
(e) support provided by the Laboratory (travel, administrative, office space, supplies);
(f) a one page SDE;
(g) a provision that states no additional time will be added to a volunteer's service credit for such purposes as retirement, severance pay, and leave as a result of being a member of the Voluntary Emeritus Corps;
(h) a provision allowing either party to void the agreement with ten working days written notice; and
(i) the level of security access required (any security clearance required by the assignment is managed by the Laboratory while the volunteer is a member of the Emeritus Corps).
The competitive area may be determined by career paths (pay plans), lines of business, product lines, organizational units, funding lines, occupational series, functional area, technology directorate, and/or geographical location, or a combination of these elements, and must include all Demonstration Project employees within the defined competitive area. The RIF system has a single round of competition to replace the current two-round process. Once the position to be abolished has been identified, the incumbent of that position may displace another employee when the incumbent has a higher retention standing and is fully qualified for the position occupied by the employee with a lower standing.
Retention standing is based on tenure, veterans' preference, overall CCS score, and length of service. There is no augmented service credit based on contribution scores (
Displacement is limited to one broadband level below the employee's present level within the career path. Broadband level I employees can displace within their current broadband level. A preference eligible employee with a compensable service connected disability of 30 percent or more may displace up to two broadband levels below the employee's present level within the career path. A broadband level I preference eligible employee (with a compensable service connected disability of 30 percent or more) can displace within their current broadband. Employees bumped to lower broadband levels maintain their existing basic pay for the remainder of the current CCS cycle. Any future basic pay increases are dependent upon CCS assessments.
An employee whose current overall CCS scores places him/her in the area above the upper rail, may only displace an employee in the same zone during that same period. The same “undue disruption” standard currently utilized serves as the criteria to determine if an employee is fully qualified. The displaced individual may similarly displace another employee. If/When there is no position in which an employee can be placed by this process or assigned to a vacant position, that employee will be separated.
After completion of the first rating cycle, employees are provided credit for contribution based on their actual OCS. After completion of the second rating cycle, employees are provided contribution credit based on the average of their last two contribution scores. After completion of the third rating cycle, employees are provided contribution credit based on the average of their last three contribution scores. The expected CCS score is used for employees who have not yet received a CCS assessment.
An extensive training program is currently in place for participants in the Demonstration Project. Supervisory training is required for all new supervisors of Demonstration Project employees, to include comprehensive CCS training, providing effective CCS feedback training, and CCS software training. Additional training is planned for and will be made available to support personnel and every employee who converts into the Demonstration Project. Training will adequately describe the features as they pertain to each career path and will address employee concerns to ensure that everyone has a comprehensive understanding of the program. Training requirements vary from an overview of the Demonstration Project, to a more detailed package for the employees now entering the Demonstration Project, as well as very specific instructions for both civilian and military supervisors, managers, and others who provide personnel and payroll support.
Initial entry into the Demonstration Project for covered employees is accomplished through a full employee protection approach that ensures each employee an initial place in the appropriate broadband level without loss of pay, using an 890 Nature of Action Code. Employees are converted into the career path and broadband level which includes their permanent GS/GM grade and occupational series of record, unless there are extenuating circumstances which require individual attention, such as special pay rates or pay retention. Adverse action provisions do not apply to the conversion process as there is no change in total adjusted pay.
Under the GS pay structure, employees progress through their assigned grade in step increments. In the Demonstration Project, basic pay progression through the levels depends on contribution to the mission and there are no scheduled within-grade increases (WGIs). Rules governing WGI under the current AF performance plan will continue in effect until the implementation date. Adjustments to the employees' basic pay for WGI equity will be computed effective the date of conversion. WGI equity is acknowledged by increasing basic pay rates by a prorated share based upon the number of days an employee has completed towards the next higher step. Employees at step ten on the date of implementation are not eligible for WGI equity adjustments since they are already at the top of the step scale. As under the GS system, supervisors are able to withhold these partial step increases if the employee's performance has fallen below fully successful.
All employees are eligible for future locality pay increases of the geographical areas of their official duty station. Special Salary Rates are not applicable to Demonstration Project employees. Employees on special salary rates at the time of conversion receive a new basic pay rate which is computed by dividing their highest adjusted basic pay (
Grade and pay retention entitlements are eliminated. At the time of conversion, an employee on grade retention will be converted to the career path and broadband level based on the assigned permanent position of record, not the retained grade. The employee's basic pay and adjusted basic pay while on grade retention status will be used in setting appropriate pay upon conversion and in determining the amount of any WGI buy-in. An employee's adjusted basic pay will not be reduced upon conversion.
Employees serving under regular term appointments at the time of conversion to the Demonstration Project will be converted to the new modified term appointments provided they were hired for their current positions under competitive procedures.
In order to ensure full employee compensation toward previous performance, AFRL may conduct a GS annual or close-out appraisal which may include a performance award. If an annual CCS assessment is not possible due to the conversion date (
(a) In the event the Project ends, a conversion back to the former or to an applicable Federal Civil Service system may be required. The grade of employees' positions in the new system will be based upon the position classification criteria of the gaining system. Employees, when converted to their positions classified under the new system, may be eligible for pay retention under 5 CFR part 536, if applicable.
(b) However, an employee will not be provided a lower grade than the grade held by the employee immediately preceding a conversion, lateral reassignment, or lateral transfer into the project, unless since that time the employee has either undergone a reduction in band or a reduction within the same pay band due to unacceptable performance.
If a Demonstration Project employee accepts a position in the GS or another pay system, the following procedures will be used to convert the employee's broadband level to a GS-equivalent grade and the employee's Demonstration Project basic pay to the GS-equivalent rate of pay for pay setting purposes. The equivalent GS grade and GS rate of pay must be determined before movement out of the Demonstration Project and any accompanying geographic movement, promotion, or other simultaneous action.
An employee in a broadband level corresponding to a single GS grade is provided that grade as the GS-equivalent grade. An employee in a broadband corresponding to two or more grades is determined to have a GS-equivalent grade corresponding to one of those grades according to the following rules:
(a) The employee's adjusted base pay under the demonstration project (including any locality payment or staffing supplement) is compared with step 1 rates in the highest applicable GS rate range. For this purpose, a GS rate range includes a rate in:
i. The GS base schedule;
ii. The locality rate schedule for the locality pay area in which the position is located; or
iii. The appropriate special rate schedule for the employee's occupational series, as applicable.
If The series is a two-grade interval series, only odd-numbered grades are considered below GS–11.
(b) For lateral reassignments, the equivalent GS grade and rate will become the employee's converted GS grade and rate after leaving the Demonstration Project (before any other action).
(c) For transfers, promotions, and other actions, the converted GS grade and rate will be used in applying any GS pay administration rules applicable in connection with the employee's movement out of the Project (
Public Law 103–337 removed any mandatory expiration date for this Demonstration Project. The Project evaluation plan adequately addresses how each intervention is comprehensively evaluated.
Many aspects of a Demonstration Project are experimental. Minor modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the system is working. Flexibilities published in this
Authorizing legislation mandates evaluation of the Demonstration Project to assess the merits of Project outcomes and to evaluate the feasibility of applications to other Federal organizations. The overall evaluation consists of two components—external and internal evaluation. The external evaluation for the AF Laboratory Demonstration is part of a larger effort involving evaluation of demonstration projects in reinvention laboratories in three military services. External evaluation was originally overseen by the Office of Merit Systems Oversight and Effectiveness, OPM, and the Director, Defense Research and Engineering (DDR&E) and Civilian Personnel Policy (CPP), DoD. OPM's Personnel Resources and Development Center (PRDC) served as external evaluator for the first five years of the Project to ensure the integrity of the evaluation process, outcomes, and interpretation of results. After the five-year point decision to continue the Demonstration Project, AFRL opted out of OPM's external evaluation effort and continued its own internal evaluation. AFRL intends to continue the same level of evaluation with the addition of the expanded project coverage.
The main purpose of the evaluation is to determine the effectiveness of the personnel system changes as they are expanded to cover additional segments of the AFRL population and to ensure that there are no unintended adverse outcomes of the changes. To the extent possible, cause-and-effect relationships between the changes and personnel system effectiveness criteria will be established. The evaluation approach uses the intervention impact model shown in Table 3, which specifies each personnel system change as an intervention; the expected effects of each intervention; the corresponding measures of these effects; and the data sources for obtaining the measures.
The goal of this Demonstration Project is a system in which payroll costs and resource utilization can be controlled consistent with the organization's fiscal strategies. This Demonstration Project consists of a system of pay incentives and processes that are flexible and can operate in harmony with the operational and financial needs of the larger organization. The costs of the Project are borne by AFRL. Costs associated with the Demonstration Project include DCPDS and software automation, training, WGI buy-in, buy-up to minimum for band, and Project evaluation. The timing of the expenditures depends on the implementation schedule. Because automation requirements will be minimized as a result of existing software system similarities, costs are estimated to be below $100K.
The following waivers and adaptations of certain title 5, U.S.C. and title 5, CFR provisions are required only to the extent that these statutory and regulatory provisions limit or are inconsistent with the actions contemplated under this demonstration project. Nothing in this plan is intended to preclude the demonstration project from adopting or incorporating any law or regulation enacted, adopted, or amended after the effective date of this demonstration project.
Chapter 31, section 3111: Acceptance of Volunteer Service. (This section is waived to allow for a Voluntary Emeritus Corps.)
Chapter 33, section 3308: Competitive Service; Examinations; Educational Requirements Prohibited. (This section is waived with respect to the scholastic achievement appointment authority.)
Chapter 33, sections 3317(a) and 3318(a): Competitive Service; Related to certification and selection from registers. (These sections are waived to eliminate the “rule of three.”)
Chapter 33, section 3319: Alternative Ranking and Selection Procedures. (This section is waived to eliminate quality categories.)
Chapter 33, section 3321: Competitive Service; Probationary Period. (This section waived only to the extent necessary to replace “grade” with “broadband level.”)
Chapter 33, section 3341: Details; Within Executive or Military Departments. (This section is adapted to the extent necessary to waive the time limits for details.)
Chapter 35, section 3502: Order of Retention. (This section waived to the extent necessary to allow provisions of the RIF plan as described in this
Chapter 43, sections 4301–4305: Related to performance appraisal. (These sections are waived to the extent necessary to allow provisions of the contribution-based compensation system as described in this
Chapter 51, sections 5101–5102(a)(5), 5103, and sections 5104–5112: Related to classification standards and grading. (These sections are waived to the extent necessary to allow classification provisions described in this
Chapter 53, sections 5301–5307: Related to pay comparability system and General Schedule pay rates. (This waiver applies to the extent necessary to allow: (1) Demonstration Project employees to be treated as GS employees and (2) basic rates of pay under the Demonstration Project to be treated as scheduled rates of basic pay.
Chapter 53, sections 5331–5336: These waivers apply to the extent necessary to allow: (1) Demonstration Project employees to be treated as GS employees; (2) to allow the provisions of this
Chapter 53, sections 5361–5366: Grade and Pay Retention. (These sections waived to the extent necessary to: (1) Replace “grade” with “broadband;” (2) allow Demonstration project employees to be treated as GS employees; and (3) sections 5362–5366 are waived in their entirety to allow provisions of this
Chapter 55, sections 5545 and 5547: Related to premium pay. (These sections waived to the extent necessary to allow Demonstration Project employees to be treated as GS employees.)
Chapter 57, sections 5753–5755: Related to recruitment, relocation, retention payments, and supervisory differential. (These sections waived to the extent necessary to allow: (1) Employees and positions under the Demonstration Project to be treated as employees and positions under the GS and (2) that management may offer a
Chapter 75, sections 7501(1), 7511(a)(1)(A)(ii), (a)(1)(B), and (a)(1)(C)(ii): Related to removal, suspension, and reduction in grade or pay. (These sections are waived to the extent that they refer to one or two years of continuous service to allow up to a three-year probationary period for S&Es.)
Chapter 75, section 7512(3): Related to adverse action. (This section waived to the extent necessary to: (1) Replace “grade” with “broadband level;” and (2) exclude reductions in broadband level not accompanied by a reduction in pay.)
Chapter 75, section 7512(4): Related to adverse action. (This section is waived to the extent necessary to provide that adverse action provisions do not apply to conversions from GS special rates to Demonstration Project pay, as long as total pay is not reduced.)
Part 213, section 213.3202: Tenure Group. (Amended to allow excepted service employees to be in tenure group I.)
Part 300, sections 300.601–300.605: Time-in-Grade Restrictions. (Time-in-grade restrictions are eliminated in this demonstration project.)
Part 308, sections 308.101–308.103: Volunteer Service. (Amended to allow for a Voluntary Emeritus Corps.)
Part 315, sections 315.801(a); (b)(1); (c) and (e); and sections 315.802(a) and (b)(1): Related to probationary period. (Amended to allow for extended probationary or trial period of 3 years for all newly hired S&E employees.)
Part 315, section 315.901 and 315.907: Probation on Initial Appointment to a Supervisory or Managerial Position. (This section waived only to the extent necessary to replace “grade” with “broadband level.”)
Part 316, sections 316.301, 316.303, and 316.304: Term Employment. (These sections are waived to allow modified term appointments as described in this
Part 332, sections 332.401 and 332.404: Order on Registers and Order of Selection from Certificates. (These sections are waived to the extent necessary to allow: (1) No rating and ranking when there are 15 or fewer qualified applicants and no preference eligibles; (2) the hiring and appointment authorities as described in this
Part 335, section 335.103(c): Agency Promotion Programs. (This section is waived to the extent necessary to: (1) Allow non-competitive temporary job changes as described in this
Part 337, section 337.101(a): Rating Applicants. (This section is waived when there are 15 or fewer qualified applicants and no preference eligibles.)
Part 340, subpart A, subpart B, and subpart C: Other than Full-Time Career Employment. (These subparts are waived to the extent necessary to allow for a Voluntary Emeritus Corps and to allow excepted service employees to be in tenure group I.)
Part 351, Reduction-in-Force. (This part is waived to the extent necessary to allow provisions of the RIF plan as described in this
Part 430, subpart A and subpart B: Performance Management; Performance Appraisal. (These subparts are waived to the extent necessary to allow provisions of the contribution-based compensation system as described in this
Part 432, sections 432.101–432.105: Regarding performance based reduction in grade and removal actions. (These sections are waived to the extent necessary to: (1) Replace “grade” with “broadband;” (2) exclude reductions in broadband level not accompanied by a reduction in pay; and (3) allow provisions of CCS and addressing inadequate contribution as described in this
Part 511, subpart A, subpart B: Classification under the General Schedule. (These subparts are waived to the extent necessary to allow classification provisions outlined in this
Part 511, sections 511.601–511.612: Classification Appeals. (These sections are waived to the extent necessary to: (1) Replace “grade” with “broadband;” (2) add to the list of issues that are neither appealable or reviewable, the assignment of series under the project plan to appropriate career paths; and (3) to allow informal appeals to be decided by the AFRL pay pool manager. Formal appeal rights are unchanged.)
Part 530, subpart C: Special Rate Schedules for Recruitment and Retention. (This subpart is waived in its entirety.)
Part 531, subpart B: Determining Rate of Pay; subpart D: Within-Grade Increases; subpart E: Quality Step Increases. (These subparts are waived in their entirety to allow for the pay setting provisions as described in this
Part 531, subpart F: Locality Payments. (This subpart is waived to the extent necessary to allow: (1) Demonstration Project employees to be treated as GS employees; (2) replace “grade” with “broadband;” and (3) to allow basic rates of pay under the Demonstration Project to be treated as scheduled rates of basic pay.)
Part 536, subpart A, subpart B, and subpart C: Grade and Pay Retention. (These subparts are waived in their entirety.)
Part 550, section 550.703: Severance Pay. (This section is waived to the extent to allow AFRL to define reasonable offer.)
Part 550, section 550.902: Hazard Pay. (Definition of “employee,” is waived only to the extent necessary to allow Demonstration Project employees to be treated as GS employees.)
Part 575, sections 575.103(a), 575.203(a), 575.303(a), and subpart D: Recruitment and Relocation Bonuses; Retention Allowances; Supervisory Differentials. (These sections are adapted to the extent necessary to allow employees and positions under the Demonstration Project to be treated as employees and positions under the General Schedule. Subpart D is waived in its entirety; pay is based on employee contribution.)
Part 575, sections 575.201; 575.202; 575.205(a), (b); 575.206(a)(1); (b), (c); 575.207(a)(3); and 575.208(a)(1)(i), (a)(1)(iv), and (a)(3): Relocation Incentives. (These sections waived to the extent necessary to allow: (1) Relocation incentives to new SCEP students; (2) employees and positions under the Demonstration Project to be treated as employees and positions under the General Schedule; and (3) relocation incentives to SCEP students whose worksite is in a different geographic location than that of the college enrolled.)
Part 591, subpart B: Cost-of-Living Allowance and Post Differential—Nonforeign Areas. (This subpart is adapted to the extent necessary to allow employees and positions under the Demonstration Project to be treated as employees and positions under the General Schedule.)
Part 752, sections 752.101 and 752.301: Adverse Actions. (This section is waived to the extent that they refer to one or two years of continuous service
Part 752, section 752.401(a)(3): Reduction in Grade. (This section is waived to the extent necessary to replace “grade” with “broadband” and to exclude reductions in broadband level not accompanied by a reduction in pay.)
Part 752, section 752.401(a)(4): Reduction in Pay. (This section is waived to the extent necessary to provide that adverse action provisions do not apply to conversions from GS special rates to Demonstration Project pay, as long as total pay is not reduced.)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005–45. A companion document, the
For effective dates see separate documents, which follow.
The analyst whose name appears in the table below in relation to each FAR case. Please cite FAC 2005–45 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005–45 amends the FAR as specified below:
This final rule amends the FAR to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. Section 807 requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index for all urban consumers, except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds. The Councils have also used the same methodology to adjust nonstatutory FAR acquisition-related thresholds in 2010.
This is the second review of FAR acquisition-related thresholds. The Councils published a proposed rule in the
The effect of the final rule on heavily-used thresholds is the same as stated in the preamble to the proposed rule:
• The micro-purchase base threshold of $3,000 (FAR 2.101) is not changed.
• The simplified acquisition threshold (FAR 2.101) is raised from $100,000 to $150,000.
• The FedBizOpps preaward and post-award notices (Part 5) remain at $25,000 because of trade agreements.
• Commercial items test program ceiling (FAR 13.500) is raised from $5,500,000 to $6,500,000.
• The cost or pricing data threshold (FAR 15.403–4) is raised from $650,000 to $700,000.
• The prime contractor subcontracting plan (FAR 19.702) floor is raised from $550,000 to $650,000, and the construction threshold of $1,000,000 increases to $1,500,000.
This final rule amends the FAR by redefining “cost or pricing data,” adding a definition of “certified cost or pricing data,” and changing the term “information other than cost or pricing data,” to “data other than certified cost or pricing data.” The rule clarifies the existing authority for contracting officers to require certified cost or pricing data or data other than certified cost or pricing data, and the existing requirements for submission of the various types of pricing data. The rule is required to eliminate confusion and misunderstanding, especially regarding the authority of the contracting officer to request data other than certified cost or pricing data when there is no other means to determine that proposed prices are fair and reasonable. Most significantly, the rule clarifies that data other than certified cost or pricing data may include the identical types of data as certified cost or pricing data but without the certification. Because the rule clarifies existing requirements, it will have only minimal impact on the Government, offerors, and automated systems.
This final rule converts the interim rule published in the
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. Section 807 requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index (CPI) for all urban consumers, except for Davis-Bacon Act, Service Contract Act, and trade agreements thresholds. The Councils have also used the same methodology to adjust nonstatutory FAR acquisition-related thresholds in 2010.
For clarification of content, contact Mr. Michael Jackson, Procurement Analyst, at (202) 208–4949. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–45, FAR case 2008–024.
The first review of acquisition-related thresholds to implement section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108–375) was conducted under FAR Case 2004–033 during FY 2005. The final rule for the first review was published in the
• What an acquisition-related threshold is;
• What acquisition-related thresholds are not subject to escalation adjustment under this case;
• How the Councils analyze statutory and nonstatutory acquisition-related thresholds; and
• The effect of this rule on the most heavily-used thresholds.
Eight respondents submitted comments on the proposed rule, which are addressed in the following section. The final rule has been coordinated with the Department of Labor and the Small Business Administration in areas of the regulation for which they are the lead agency. Any changes to Cost Accounting Standards thresholds will be dealt with under a separate case.
Another respondent recommended increasing the prime contractor subcontracting plan threshold to $700,000, to be the same as the increased cost or pricing data threshold.
• One respondent stated that the law is “an unfortunate and contradictory statutory requirement.” The respondent considered that the threshold increase will undermine the original protective purposes of the bonding requirements set forth in the Miller Act, because more Federal construction projects will be undertaken without the benefit of payment bond protection. In particular, this respondent noted that subcontractors are frequently small businesses, for whom lack of a payment bond may be disastrous. The respondent requested the Councils explain accurately to Congress the significant negative impact that such increases will have.
• Another respondent stated that the threshold increase is bad public policy, and the Councils should reconsider whether such thresholds are “acquisition-related thresholds” as contemplated by the Act.
• The third respondent urged the Councils not to increase the Miller Act surety bond threshold, but did not suggest rationale for noncompliance with the statutory requirement.
As to whether the Miller Act threshold is an acquisition-related threshold, this threshold clearly meets the definition that was set forth in the law, as consistently interpreted by the Councils since the enactment of the law in 2004. The law defines an acquisition-related threshold as a threshold that is set forth in law (the Miller Act), as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law to the procurement of property or services by an executive agency. As this definition is applied to the Miller Act threshold, the Miller Act requires payment and performance bonds when agencies acquire construction that is valued at more than the Miller Act threshold (raised by this rule from $100,000 to $150,000).
•
•
•
• In particular, the approval levels for limited source justifications at FAR 8.405–6 were selected to be consistent with the statutory thresholds at FAR 6.304(a). Therefore, it is reasonable to escalate these thresholds the same as the thresholds at FAR 6.304(a) to maintain the consistency.
• Although the respondent cited the threshold for subcontracting plans governed by FAR 19.702 as an example of a nonstatutory threshold, this threshold is actually a statutory threshold (15 U.S.C. 637(d)(4)), which must therefore be escalated.
Two Government employees provided comments relating to the implementation of the rule.
One respondent expressed concern over the large number of systems changes that this rule will require and the difficulty of implementation in a short period of time. The respondent recommended providing ample time between the release of firm requirements and the required implementation.
Although there were no changes between the proposed rule and the final rule as the result of public comments, some of the thresholds changed due to lower inflation than was projected at the time of publication of the proposed rule. The proposed rule was based on a projected consumer price index (CPI) of 222 in April 2010. The final rule is based on an actual CPI of 217.631 through the end of March 2010. The end of March, 6 months before the effective date of the rule, is used as the cutoff in order to allow time for approval and publication of the final rule.
Because the actual CPI is more than 4 points lower than the projected CPI, proposed thresholds of at least $13 million are generally proportionally lower. Thresholds of less than $13 million were generally unchanged, due to rounding.
The effect of the final rule on heavily-used thresholds is the same as stated in the preamble to the proposed rule:
• The micro-purchase base threshold of $3,000 (FAR 2.101) is not changed.
• The simplified acquisition threshold (FAR 2.101) is raised from $100,000 to $150,000.
• The FedBizOpps preaward and post-award notices (FAR part 5) remain at $25,000 because of trade agreements.
• Commercial items test program ceiling (FAR 13.500) is raised from $5,500,000 to $6,500,000.
• The cost or pricing data threshold (FAR 15.403–4) is raised from $650,000 to $700,000.
• The prime contractor subcontracting plan (FAR 19.702) floor is raised from $550,000 to $650,000, and the construction threshold of $1,000,000 increases to $1,500,000.
This final rule is a significant regulatory action and, therefore, was subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Numbers:
• 9000–0006, Subcontracting Plans/Subcontracting Report for Individual Contract (SF 294)—FAR Sections Affected: Subpart 19.7 and 52.219–9;
• 9000–0007, Summary Subcontract Report—FAR Sections Affected: Subpart 19.7, 53.219, and SF 295;
• 9000–0013, Cost or Pricing Data Exemption—FAR Sections Affected: Subparts 15.4, 42.7, 52.214–28, 52.215–12, 52.215–13, 52.215–20, and 52.215–21;
• 9000–0018, Certification of Independent Price Determination and Parent Company and Identifying Data—FAR Sections Affected: 3.103 and 3.302;
• 9000–0022, Duty-Free Entry—FAR 48 CFR 52.225–8—FAR Section Affected: 52.225–8;
• 9000–0026, Change Order Accounting—FAR Sections Affected: 43.205(f) and 52.243–6;
• 9000–0027, Value Engineering Requirements—FAR Sections Affected: Subparts 48.1 and 48.2, 52.248–1, 52.248–2, and 52.248–3;
• 9000–0034, Examination of Records 5 CFR 1320.5(b) by Comptroller General and Contract Audit—FAR Sections Affected: 52.215–2, 52.212–5, and 52.214–26;
• 9000–0045, Bid, Performance, and Payment Bonds—FAR Sections Affected: Subparts 28.1 and 28.2, 52.228–1, 52.228–2, 52.228–13, 52.228–15, and 52.228–16;
• 9000–0058, Schedules for Construction Contracts—FAR Section Affected: 52.236–15;
• 9000–0060, Accident Prevention 48 CFR 52.236–13, Plans and Recordkeeping—FAR Section Affected: 52.236–13;
• 9000–0066, Professional Employee Compensation Plan—FAR Sections Affected: Subpart 22.11 and 52.222–46;
• 9000–0073, Advance Payments—FAR Sections Affected: Subpart 32.4 and 52.232–12;
• 9000–0077, Quality Assurance Requirements—FAR Sections Affected: Subparts 46.1 through 46.3, 52.246–2 through 52.246–8, 52.246–10, 52.246–12, and 52.246–15;
• 9000–0080, Integrity of Unit Prices—FAR Sections Affected: 15.408(f) and 52.215–14;
• 9000–0091, Anti-Kickback Procedures—FAR Sections Affected: 3.502, and 52.203–7;
• 9000–0094, Debarment and Suspension, FAR Sections Affected: 9.1, 9.4, 52.209–5, and 52.212–3(h);
• 9000–0101, Drug-Free Workplace—FAR Section Affected: 52.223–6(b)(5);
• 9000–0115, Notification of Ownership Changes—FAR Sections Affected: 15.408(k) and 52.215–19;
• 9000–0133, Defense Production Act Amendments—FAR Sections Affected: 34.1 and 52.234–1;
• 9000–0134, Environmentally Sound Products—FAR Sections Affected: 23.406 and 52.223–4;
• 9000–0135, Prospective Subcontractor Requests for Bonds, FAR 28.106–4(b), 52.228–12;
• 1215–0072, OFCCP Recordkeeping and Reporting Requirements—Supply and Service; and
• 1215–0119, Requirements of a Bona Fide Thrift or Savings Plan (29 CFR part 547) and Requirements of a Bona Fide Profit-Sharing Plan or Trust (29 CFR part 549).
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to clarify the distinction between “certified cost or pricing data” and “data other than certified cost or pricing data”, and to clarify requirements for submission of cost or pricing data.
For clarification of content, contact Mr. Edward N. Chambers, Procurement Analyst, at (202) 501–3221. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–45, FAR case 2005–036.
Subpart 15.4 of the FAR describes the contracting officer's responsibility to purchase supplies and services at fair and reasonable prices and the use of data and information in meeting this requirement. This subpart incorporates the requirements of the Truth In Negotiations Act (TINA), 10 U.S.C. 2306a and 41 U.S.C. 254b, which address the requirements for the submission of cost or pricing data and the circumstances under which a contractor must certify to their accuracy, completeness, and currency.
The Councils believe that the implementation of TINA in FAR subpart 15.4 is not sufficiently clear. In particular, there is confusion regarding the right of the Government to request “data other than certified cost or pricing data,” the obligation of the offeror to provide this data, and the definition of this term.
This lack of clarity is due, in large part, to definitions that overlap and are not identical to TINA. For example, the term “cost or pricing data” is defined in the FAR to mean certified cost or pricing data, whereas TINA does not make certification part of the definition of this term. This regulatory refinement has led to confusion regarding the level of information that a contracting officer may request to establish fair and reasonable pricing including a misunderstanding by some that the data elements that comprise cost or pricing data cannot be requested by the Government unless the data are required by law to be submitted to the contracting officer in a certified form. This confusion has been exacerbated by the FAR's use of the phrase “information other than cost or pricing data,” which has made it difficult for contracting officers to understand the circumstances when data other than certified cost or pricing data should be obtained to protect the Government from paying unreasonable prices.
Even the basic articulation of policy regarding the use of data to establish the fairness and reasonableness of offered prices in the introductory paragraph of FAR 15.402(a) has lacked a certain level of clarity that creates uncertainty. For many years, this paragraph has appropriately cautioned contracting officers not to obtain more information than is necessary—and the FAR must continue to do so. However this paragraph should also, but currently does not, expressly mention the underlying statutory authority to collect “data other than certified cost or pricing data.” Because of this omission, some contracting officers may be under the misperception that there is a greater responsibility to avoid asking unnecessarily for the submission of cost or pricing data than there is, in the first instance, to determine whether and how much of this data may be required, in a given case, to establish price fairness and reasonableness. In fact, both responsibilities—
DoD, GSA, and NASA published a proposed rule in the
Based on comments received on the proposed rule, a public meeting held on November 1, 2007, and additional deliberations (which are all discussed in greater detail below), the Councils have adopted a final rule that—
• Clarifies terminology used in the FAR to make it consistent with TINA, resulting in (i) refinements to the regulatory definition of cost or pricing data, (ii) the addition of a definition for “certified cost or pricing data,” (iii) the addition of a definition for “data other than certified cost or pricing data,” and
• Clarifies responsibilities regarding the request for, and submission of, “data other than certified cost or pricing data” to establish fair and reasonable pricing, both in the case when “certified cost or pricing data” is required and is not required;
• Retains the current order of preference for determining the type of cost or pricing data required to establish fair and reasonable prices when certified cost or pricing data are not required;
• Retains and reinforces important statements to explain why contracting officers must not require, unnecessarily, the submission of “data other than certified cost or pricing data”;
• Clarifies the instructions for offerors preparing a contract pricing proposal when cost or pricing data are required so that such instructions are consistent with the clarified terminology and policies for determining the type and quantity of data necessary to establish a fair and reasonable price; and
• Supplements existing coverage to clarify current coverage and achieve greater understanding by contracting officers and contractors.
This rule neither expands nor diminishes the existing rights of contracting officers to request cost or pricing data (whether certified or other than certified) or other information, or the existing responsibilities of the offeror to submit such data or other information. Similarly, the rule does not require, encourage, or authorize contracting officers to obtain cost or pricing data or other information unless it is needed to determine that prices offered are fair and reasonable, which may include the request for such data in connection with a cost realism analysis. As the rule explains, requiring contractors to submit more data than what is needed can “lead to increased proposal preparation costs, generally extend acquisition lead time, and consume additional contractor and Government resources.”
Whether a contractor must submit “certified cost or pricing data” is based on the requirements of TINA and its stated exceptions. With respect to “data other than certified cost or pricing data,” the introductory policy statement in FAR 15.402(a) has been clarified to tie together the contracting officer's longstanding statutory responsibility to request the data and information necessary to establish a fair and reasonable price—as stated in TINA at 10 U.S.C. 2306a(d)(1) and 41 U.S.C. 254b(d)(1)—with the caution that, in doing so, the contracting officer must not request more data than is necessary. By doing so, the FAR will provide a more complete articulation of the policy underlying the use of “data other than certified cost or pricing data” in establishing price fairness and reasonableness, in furtherance of the contracting officer's duty to serve as a responsible steward of the taxpayer's resources.
The first comment period closed on June 22, 2007. Comments were received from 11 respondents. As a result of the comments received, a public meeting was scheduled with notice provided at 72 FR 61854 on November 1, 2007. The public meeting was held on November 15, 2007, and was followed by a one week period for submission of additional comments. Several respondents submitted additional comments. The public comments are addressed in the following analysis:
Some respondents noted that the proposed changes should alleviate confusion. Others raised the following general concerns regarding various aspects of the proposed rule.
1. Some respondents were concerned that the proposed rule will result in contracting officers by-passing normal market research and pricing techniques and require contractors to submit full cost or pricing data as if the Truth in Negotiations Act (TINA) applied.
2. Public comments did point out an error where the proposed rule changed the FAR to require certified cost or pricing data “and” data other than certified cost or pricing data.
3. Some respondents were concerned about the broadening of the definition of “information other than cost or pricing data” by adding the words “and judgmental information.”
4. Many respondents were concerned that the proposed rule inappropriately adds the phrase “data other than certified cost or pricing data” throughout the proposed rule when only certified cost or pricing data apply.
5. Several respondents were concerned that offerors of commercial items would be required to submit cost data in all instances.
Section 2306a(h) of Title 10, as well as section 254b(h) of Title 41 of the U.S. Code, define both “cost or pricing data” and the circumstances under which that data must be certified. When the data must be certified, that data becomes “certified cost or pricing data.” If, after submittal, no certification is required, the data becomes “data other than certified cost or pricing data.” Sections 2306a(d)(1) and 254b(d)(1) state: “When certified cost or pricing data are not required * * * the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price * * * the contracting officer shall require that the data submitted include, at a minimum, appropriate information on prices at which the same or similar items have previously been sold. * * *” The statutory requirement is to obtain data necessary to determine the reasonableness of the price. The contracting officer cannot require certification of the data submitted if TINA does not require it to be certified. If the contracting officer has no other means to determine the reasonableness of the price (the main requirement of TINA), then the contracting officer shall require the submission of the necessary data needed to make that determination, including, at a minimum, prices at which the same or similar items have been previously sold. TINA does not prohibit obtaining cost or pricing data when “certified cost or pricing data” is not required to be obtained, but TINA (10 U.S.C. 2306(d)), as well as the FAR, provide requirements to ensure the contracting officer does not require more data than is necessary to determine that the prices are fair and reasonable.
This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000–0013.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
The added and revised text reads as follows:
(b) * * *
(2) * * *
(1) The judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data; and
(2) The nature and amount of any contingencies included in the proposed price.
(a) * * *
(17) Data and information related to the contracting officer's determination of a fair and reasonable price. This may include—
(i) Certified cost or pricing data;
(ii) Data other than certified cost or pricing data;
(iii) Justification for waiver from the requirement to submit certified cost or pricing data; or
(iv) Certificates of Current Cost or Pricing Data.
(b) * * *
(4) Certified cost or pricing data, Certificates of Current Cost or Pricing Data, or data other than certified cost or pricing data; cost or price analysis; and other documentation supporting contractual actions executed by the contract administration office.
(b)(1) When contracting by sealed bidding, the contracting officer shall insert the clause at 52.214–27, Price Reduction for Defective Certified Cost or Pricing Data—Modifications—Sealed Bidding, in solicitations and contracts if the contract amount is expected to exceed the threshold for submission of certified cost or pricing data at 15.403–4(a)(1).
(c)(1) When contracting by sealed bidding, the contracting officer shall insert the clause at 52.214–28, Subcontractor Certified Cost or Pricing Data—Modifications—Sealed Bidding, in solicitations and contracts if the contract amount is expected to exceed the threshold for submission of certified cost or pricing data at 15.403–4(a)(1).
(b) * * *
(5) Certified cost or pricing data (see Table 15–2 of 15.408) or data other than certified cost or pricing data.
Contracting officers shall—
(a) Purchase supplies and services from responsible sources at fair and reasonable prices. In establishing the reasonableness of the offered prices, the contracting officer—
(1) Shall obtain certified cost or pricing data when required by 15.403–4, along with data other than certified cost or pricing data as necessary to establish a fair and reasonable price; or
(2) When certified cost or pricing data are not required by 15.403–4, obtain data other than certified cost or pricing data as necessary to establish a fair and reasonable price, generally using the following order of preference in determining the type of data required:
(i) No additional data from the offeror, if the price is based on adequate price competition, except as provided by 15.403–3(b).
(ii) Data other than certified cost or pricing data such as—
(A) Data related to prices (
(B) Cost data to the extent necessary for the contracting officer to determine a fair and reasonable price.
(3) Obtain the type and quantity of data necessary to establish a fair and
The revised text reads as follows:
(a) Certified cost or pricing data shall not be obtained for acquisitions at or below the simplified acquisition threshold.
(b)
(c)
(3) * * *
(i) Any acquisition of an item that the contracting officer determines meets the commercial item definition in 2.101, or any modification, as defined in paragraph (3)(i) of that definition, that does not change the item from a commercial item to a noncommercial item, is exempt from the requirement for certified cost or pricing data. If the contracting officer determines that an item claimed to be commercial is, in fact, not commercial and that no other exception or waiver applies, (
(iii) * * *
(B) For acquisitions funded by DoD, NASA, or Coast Guard, such modifications of a commercial item are exempt from the requirement for submission of certified cost or pricing data provided the total price of all such modifications under a particular contract action does not exceed the greater of the threshold for obtaining certified cost or pricing data in 15.403–4 or 5 percent of the total price of the contract at the time of contract award.
(C) For acquisitions funded by DoD, NASA, or Coast Guard such modifications of a commercial item are not exempt from the requirement for submission of certified cost or pricing data on the basis of the exemption provided for at 15.403–1(c)(3) if the total price of all such modifications under a particular contract action exceeds the greater of the threshold for obtaining certified cost or pricing data in 15.403–4 or 5 percent of the total price of the contract at the time of contract award.
(4)
(a) The exercise of an option at the price established at contract award or initial negotiation does not require submission of certified cost or pricing data.
(b) Certified cost or pricing data are not required for proposals used solely for overrun funding or interim billing price adjustments.
(a)(1) In those acquisitions that do not require certified cost or pricing data, the contracting officer shall—
(i) Obtain whatever data are available from Government or other secondary sources and use that data in determining a fair and reasonable price;
(ii) Require submission of data other than certified cost or pricing data, as defined in 2.101, from the offeror to the extent necessary to determine a fair and reasonable price (10 U.S.C. 2306a(d)(1) and 41 U.S.C. 254b(d)(1)) if the contracting officer determines that adequate data from sources other than the offeror are not available. This includes requiring data from an offeror to support a cost realism analysis;
(iii) Consider whether cost data are necessary to determine a fair and reasonable price when there is not adequate price competition;
(iv) Require that the data submitted by the offeror include, at a minimum, appropriate data on the prices at which the same item or similar items have previously been sold, adequate for determining the reasonableness of the price unless an exception under 15.403–1(b)(1) or (2) applies; and
(v) Consider the guidance in section 3.3, chapter 3, volume I, of the Contract Pricing Reference Guide cited at 15.404–1(a)(7) to determine the data an offeror shall be required to submit.
(2) The contractor's format for submitting the data should be used (see 15.403–5(b)(2)).
(3) The contracting officer shall ensure that data used to support price negotiations are sufficiently current to
(4) As specified in section 808 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105–261), an offeror who does not comply with a requirement to submit data for a contract or subcontract in accordance with paragraph (a)(1) of this subsection is ineligible for award unless the HCA determines that it is in the best interest of the Government to make the award to that offeror, based on consideration of the following:
(i) The effort made to obtain the data.
(ii) The need for the item or service.
(iii) Increased cost or significant harm to the Government if award is not made.
(b)
(c)
(2)
(ii) The contracting officer shall, to the maximum extent practicable, limit the scope of the request for data relating to commercial items to include only data that are in the form regularly maintained by the offeror as part of its commercial operations.
(iii) The Government shall not disclose outside the Government data obtained relating to commercial items that is exempt from disclosure under 24.202(a) or the Freedom of Information Act (5 U.S.C. 552(b)).
(3) For services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, see 15.403–1(c)(3)(ii).
14. Amend section 15.403–4 by revising the section heading, and paragraphs (a), (b), and (c) to read as follows:
(a)(1) The contracting officer shall obtain certified cost or pricing data only if the contracting officer concludes that none of the exceptions in 15.403–1(b) applies. However, if the contracting officer has reason to believe exceptional circumstances exist and has sufficient data available to determine a fair and reasonable price, then the contracting officer should consider requesting a waiver under the exception at 15.403–1(b)(4). The threshold for obtaining certified cost or pricing data is $700,000. Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold or, in the case of existing contracts, the threshold specified in the contract:
(i) The award of any negotiated contract (except for undefinitized actions such as letter contracts).
(ii) The award of a subcontract at any tier, if the contractor and each higher-tier subcontractor were required to furnish certified cost or pricing data (but see waivers at 15.403–1(c)(4)).
(iii) The modification of any sealed bid or negotiated contract (whether or not certified cost or pricing data were initially required) or any subcontract covered by paragraph (a)(1)(ii) of this subsection. Price adjustment amounts must consider both increases and decreases (
(A) The total final price agreement for such settlements or agreements exceeds the pertinent threshold set forth at paragraph (a)(1) of this subsection; or
(B) The partial termination settlement plus the estimate to complete the continued portion of the contract exceeds the pertinent threshold set forth at paragraph (a)(1) of this subsection (see 49.105(c)(15)).
(2) Unless prohibited because an exception at 15.403–1(b) applies, the head of the contracting activity, without power of delegation, may authorize the contracting officer to obtain certified cost or pricing data for pricing actions below the pertinent threshold in paragraph (a)(1) of this subsection, provided the action exceeds the simplified acquisition threshold. The head of the contracting activity shall justify the requirement for certified cost or pricing data. The documentation shall include a written finding that certified cost or pricing data are necessary to determine whether the price is fair and reasonable and the facts supporting that finding.
(b) When certified cost or pricing data are required, the contracting officer shall require the contractor or prospective contractor to submit to the contracting officer (and to have any subcontractor or prospective subcontractor submit to the prime contractor or appropriate subcontractor tier) the following in support of any proposal:
(1) The certified cost or pricing data and data other than certified cost or pricing data required by the contracting officer to determine that the price is fair and reasonable.
(2) A Certificate of Current Cost or Pricing Data, in the format specified in 15.406–2, certifying that to the best of its knowledge and belief, the cost or pricing data were accurate, complete, and current as of the date of agreement on price or, if applicable, an earlier date agreed upon between the parties that is
(c) If certified cost or pricing data are requested and submitted by an offeror, but an exception is later found to apply, the data must not be considered certified cost or pricing data as defined in 2.101 and must not be certified in accordance with 15.406–2.
(a) Taking into consideration the policy at 15.402, the contracting officer shall specify in the solicitation (see 15.408 (l) and (m))—
(1) Whether certified cost or pricing data are required;
(2) That, in lieu of submitting certified cost or pricing data, the offeror may submit a request for exception from the requirement to submit certified cost or pricing data;
(3) Any requirement for data other than certified cost or pricing data; and
(4) The requirement for necessary preaward or postaward access to offeror's records.
(b)(1)
(2)
(3)
The revised and added text reads as follows:
(a) * * *
(4) Cost analysis may also be used to evaluate data other than certified cost or pricing data to determine cost reasonableness or cost realism when a fair and reasonable price cannot be determined through price analysis alone for commercial or non-commercial items.
(6) * * * Any discrepancy or mistake of fact (such as duplications, omissions, and errors in computation) contained in the certified cost or pricing data or data other than certified cost or pricing data submitted in support of a proposal shall be brought to the contracting officer's attention for appropriate action.
(b)
(2) * * *
(i) * * * Normally, adequate price competition establishes a fair and reasonable price (see 15.403–1(c)(1)).
(ii) Comparison of the proposed prices to historical prices paid, whether by the Government or other than the Government, for the same or similar items. This method may be used for commercial items including those “of a type” or requiring minor modifications.
(A) The prior price must be a valid basis for comparison. If there has been a significant time lapse between the last acquisition and the present one, if the terms and conditions of the acquisition are significantly different, or if the reasonableness of the prior price is uncertain, then the prior price may not be a valid basis for comparison.
(B) The prior price must be adjusted to account for materially differing terms and conditions, quantities and market and economic factors. For similar items, the contracting officer must also adjust the prior price to account for material differences between the similar item and the item being procured.
(C) Expert technical advice should be obtained when analyzing similar items, or commercial items that are “of a type” or requiring minor modifications, to ascertain the magnitude of changes required and to assist in pricing the required changes.
(vii) Analysis of data other than certified cost or pricing data (as defined at 2.101) provided by the offeror.
(c) * * * (1) Cost analysis is the review and evaluation of any separate cost elements and profit or fee in an offeror's or contractor's proposal, as needed to determine a fair and reasonable price or to determine cost realism, and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be, assuming reasonable economy and efficiency.
(2) * * *
(v) Review to determine whether any cost data or pricing data, necessary to make the offeror's proposal suitable for negotiation, have not been either submitted or identified in writing by the offeror. If there are such data, the contracting officer shall attempt to obtain and use them in the negotiations or make satisfactory allowance for the incomplete data.
(e) * * *
(3) The contracting officer should request technical assistance in evaluating pricing related to items that are “similar to” items being purchased, or commercial items that are “of a type” or requiring minor modifications, to ascertain the magnitude of changes required and to assist in pricing the required changes.
The revised text reads as follows:
(a) * * *
(2) * * *
(iii) Information to help contracting officers determine commerciality and a fair and reasonable price, including—
(F) Identifying general market conditions affecting determinations of commerciality and a fair and reasonable price.
The revised text reads as follows:
(a) The contracting officer is responsible for the determination of a fair and reasonable price for the prime contract, including subcontracting costs. The contracting officer should consider whether a contractor or subcontractor has an approved purchasing system, has performed cost or price analysis of proposed subcontractor prices, or has negotiated the subcontract prices before negotiation of the prime contract, in determining the reasonableness of the prime contract price. This does not relieve the contracting officer from the responsibility to analyze the contractor's submission, including subcontractor's certified cost or pricing data.
(b) * * *
(3) When required by paragraph (c) of this subsection, submit subcontractor certified cost or pricing data to the Government as part of its own certified cost or pricing data.
(c) Any contractor or subcontractor that is required to submit certified cost or pricing data also shall obtain and analyze certified cost or pricing data before awarding any subcontract, purchase order, or modification expected to exceed the certified cost or pricing data threshold, unless an exception in 15.403–1(b) applies to that action.
(2) The contracting officer should require the contractor or subcontractor to submit to the Government (or cause submission of) subcontractor certified cost or pricing data below the thresholds in paragraph (c)(1) of this subsection and data other than certified cost or pricing data that the contracting officer considers necessary for adequately pricing the prime contract.
(a) When certified cost or pricing data are required, the contracting officer shall require the contractor to execute a Certificate of Current Cost or Pricing Data, using the format in this paragraph, and must include the executed certificate in the contract file.
(e) If certified cost or pricing data are requested by the Government and submitted by an offeror, but an exception is later found to apply, the data shall not be considered certified cost or pricing data and shall not be certified in accordance with this subsection.
(a) * * *
(5) If certified cost or pricing data were not required in the case of any price negotiation exceeding the certified cost or pricing data threshold, the exception used and the basis for it.
(6) If certified cost or pricing data were required, the extent to which the contracting officer—
(i) Relied on the certified cost or pricing data submitted and used them in negotiating the price;
(ii) Recognized as inaccurate, incomplete, or noncurrent any certified cost or pricing data submitted; the action taken by the contracting officer and the contractor as a result; and the effect of the defective data on the price negotiated; or
(iii) Determined that an exception applied after the data were submitted and, therefore, considered not to be certified cost or pricing data.
(7) * * * Where the determination of a fair and reasonable price is based on cost analysis, the summary shall address each major cost element. When determination of a fair and reasonable price is based on price analysis, the summary shall include the source and type of data used to support the determination.
The revised text reads as follows:
(b)(1) If, after award, certified cost or pricing data are found to be inaccurate,
(3) * * *
(iv) Certified cost or pricing data were required; however, the contractor or subcontractor did not submit a Certificate of Current Cost or Pricing Data relating to the contract.
(a) When certified cost or pricing data are required, offerors are required to describe any forward pricing rate agreements (FPRAs) in each specific pricing proposal to which the rates apply and to identify the latest cost or pricing data already submitted in accordance with the FPRA. All data submitted in connection with the FPRA, updated as necessary, form a part of the total data that the offeror certifies to be accurate, complete, and current at the time of agreement on price for an initial contract or for a contract modification. (See the Certificate of Current Cost or Pricing Data at 15.406–2.)
The revised text reads as follows:
(b)
(c)
(d)
(e)
(g)
(k)
(l)
(1) Use the provision with its Alternate I to specify a format for certified cost or pricing data other than the format required by Table 15–2 of this section;
(4) Replace the basic provision with its Alternate IV if certified cost or pricing data are not expected to be required because an exception may apply, but data other than certified cost or pricing data will be required as described in 15.403–3.
(m)
(1) Use the clause with its Alternate I to specify a format for certified cost or pricing data other than the format required by Table 15–2 of this section;
(2) Use the clause with its Alternate II if copies of the proposal are to be sent to the ACO and contract auditor;
(3) Use the clause with its Alternate III if submission via electronic media is required; and
(4) Replace the basic clause with its Alternate IV if certified cost or pricing data are not expected to be required because an exception may apply, but data other than certified cost or pricing data will be required as described in 15.403–3.
This document provides instructions for preparing a contract pricing proposal when certified cost or pricing data are required.
There is a clear distinction between submitting certified cost or pricing data and merely making available books, records, and other documents without identification. The requirement for submission of certified cost or pricing data is met when all accurate certified cost or pricing data reasonably available to the offeror have been submitted, either actually or by specific identification, to the Contracting Officer or an authorized representative. As later data come into your possession, it should be submitted promptly to the Contracting Officer in a manner that clearly shows how the data relate to the offeror's price proposal. The requirement for submission of certified cost or pricing data continues up to the time of agreement on price, or an earlier date agreed upon between the parties if applicable.
By submitting your proposal, you grant the Contracting Officer or an authorized representative the right to examine records that formed the basis for the pricing proposal. That examination can take place at any time before award. It may include those books, records, documents, and other types of factual data (regardless of form or whether the data are specifically referenced or included in the proposal as the basis for pricing) that will permit an adequate evaluation of the proposed price.
B. In submitting your proposal, you must include an index, appropriately referenced, of all the certified cost or pricing data and information accompanying or identified in the proposal. * * *
C. As part of the specific information required, you must submit, with your proposal—
(1) Certified cost or pricing data (as defined at FAR 2.101). You must clearly identify on your cover sheet that certified cost or pricing data are included as part of the proposal.
(2) Information reasonably required to explain your estimating process, including—
(i) The judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data; and
(ii) The nature and amount of any contingencies included in the proposed price.
A.
(2)
(b) In contracts that do not require submission of certified cost or pricing data, the contracting officer shall obtain adequate data to establish the base level from which adjustment will be made and may require verification of data submitted.
(c) Each letter contract shall, as required by the clause at 52.216–25, Contract Definitization, contain a negotiated definitization schedule including (1) dates for submission of the contractor's price proposal, required certified cost or pricing data and data
(b) * * *
(3) * * * If at the time of entering into the letter contract, the contracting officer knows that the definitive contract will be based on adequate price competition or will otherwise meet the criteria of 15.403–1 for not requiring submission of certified cost or pricing data, the words “and certified cost or pricing data in accordance with FAR 15.408, Table 15–2 supporting its proposal” may be deleted from paragraph (a) of the clause. * * *
(d) * * *
(3) Ensure that the subcontracting goals are consistent with the offeror's certified cost or pricing data or data other than certified cost or pricing data.
(a) * * * If required by subpart 15.4, the SBA shall obtain certified cost or pricing data from the 8(a) contractor. If the SBA requests audit assistance to determine the proposed price to be fair and reasonable in a sole source acquisition, the contracting activity shall furnish it to the extent it is available.
(b) The contracting officer shall evaluate proposals and associated certified cost or pricing data and data other than certified cost or pricing data and shall compare them to the Government estimate.
(d) The contracting officer shall retain in the file a record of all negotiations leading to any adjustment made under the clause, and related certified cost or pricing data, or data other than certified cost or pricing data.
(b) The ACO shall obtain the contractor's forward pricing rate proposal and require that it include cost or pricing data that are accurate, complete, and current as of the date of submission (but see 15.407–3(c)). * * *
(c) * * * The agreement shall provide for cancellation at the option of either party and shall require the contractor to submit to the ACO and to the cognizant contract auditor any significant change in cost or pricing data used to support the FPRA.
(a) * * *
(8) Has the contractor performed adequate cost or price analysis or price comparisons and obtained certified cost or pricing data and data other than certified cost or pricing data?
(c) Pricing policies and techniques, including methods of obtaining certified cost or pricing data, and data other than certified cost or pricing data;
The revised text reads as follows:
(b)
The revised text reads as follows:
The revised text reads as follows:
(b) Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4(a)(1), on the date of agreement on price or the date of award, whichever is later, or before pricing any subcontract modifications involving aggregate increases and/or decreases in costs, plus applicable profits, expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4(a)(1), the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), as part of the subcontractor's proposal in accordance with FAR 15.408, Table 15–2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price), unless an exception under FAR 15.403–1(b) applies.
The revised text reads as follows:
(c)
The revised text reads as follows:
(d) * * *
(1) Support its proposal with certified cost or pricing data in accordance with FAR 15.408, Table 15–2 when required by FAR 15.403, and data other than certified cost or pricing data, to permit evaluation; and
(d) * * *
(1) Support its proposal with certified cost or pricing data in accordance with FAR 15.408, Table 15–2, when required by FAR 15.403, and data other than certified cost or pricing data, to permit evaluation; and
The revised text reads as follows:
(b) Any reduction in the contract price under paragraph (a) of this clause due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract shall be limited to the amount, plus applicable overhead and profit markup, by which (1) the actual subcontract or (2) the actual cost to the Contractor, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the Contractor; provided, that the actual subcontract price was not itself affected by defective certified cost or pricing data.
The revised text reads as follows:
(c) Any reduction in the contract price under paragraph (b) of this clause due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract shall be limited to the amount, plus applicable overhead and profit markup, by which (1) the actual subcontract or (2) the actual cost to the Contractor, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the Contractor; provided, that the actual subcontract price was not itself affected by defective certified cost or pricing data.
The revised text reads as follows:
(a) Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15–2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price), unless an exception under FAR 15.403–1 applies.
The revised text reads as follows:
(b) Before awarding any subcontract expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4, on the date of agreement on price or the date of award, whichever is later; or before pricing any subcontract modification involving a pricing adjustment expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403–4, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15–2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price), unless an exception under FAR 15.403–1 applies.
The revised text reads as follows:
(a)
(b)
(1) The offeror shall prepare and submit certified cost or pricing data, data other than certified cost or pricing data, and supporting attachments in accordance with the instructions contained in Table 15–2 of FAR 15.408, which is incorporated by reference with the same force and effect as though it were inserted here in full text. The instructions in Table 15–2 are incorporated as a mandatory format to be used in this contract, unless the Contracting Officer and the Contractor agree to a different format and change this clause to use Alternate I.
(b)(1) The offeror shall submit certified cost or pricing data, data other than certified cost or pricing data, and supporting attachments in the following format:
(a) Submission of certified cost or pricing data is not required.
(b) Provide data described below:
The revised text reads as follows:
(a)
(b)
(1) The Contractor shall submit certified cost or pricing data, data other than certified cost or pricing data, and supporting attachments in accordance with the instructions contained in Table 15–2 of FAR 15.408, which is incorporated by reference with the same force and effect as though it were inserted here in full text. The instructions in Table 15–2 are incorporated as a mandatory format to be used in this contract, unless the Contracting Officer and the Contractor agree to a different format and change this clause to use Alternate I.
(b)(1) The Contractor shall submit certified cost or pricing data, data other than certified cost or pricing data, and supporting attachments prepared in the following format:
(a) Submission of certified cost or pricing data is not required.
(b) Provide data described below:
The revised text reads as follows:
(a) A ____
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) have adopted as final, with changes, an interim rule amending the Federal Acquisition Regulation (FAR) to implement the American Recovery and Reinvestment Act of 2009 (Recovery Act) with respect to the “Buy American—Recovery Act” provision, section 1605 in Division A.
For clarification of content, contact Ms. Cecelia L. Davis, Procurement Analyst, at (202) 219–0202. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–45, FAR case 2009–008.
This final rule implements the unique “Buy American—Recovery Act” provision, section 1605 of the Recovery Act, by revising FAR subpart 25.6, and related provisions and clauses at FAR part 52, with conforming changes to FAR subparts 2.1, 5.2, 25.0, and 25.11. An interim rule was published in the
As required by section 1605, the final rule makes it clear that there will be full compliance with U.S. obligations under all international trade agreements when undertaking construction covered by such agreements with Recovery Act funds. The new required provisions and clauses implement U.S. obligations under our trade agreements in the same way as they are currently implemented in non-Recovery Act construction contracts. The Caribbean Basin countries are excluded from the definition of “Recovery Act designated country,” because the treatment provided to them is not as a result of a U.S. international obligation.
The Regulatory Secretariat received 35 responses, but 2 responses lacked attached comments and 1 response appeared unrelated to the case. The responses included multiple comments on a wide range of issues addressed in the interim rule. Each issue is discussed by topic in the following sections.
Several entities representing other countries objected to the potential restrictions on trade. They alleged that the Recovery Act Buy American requirement in section 1605 is not in conformity with the U.S. pledge to refrain from raising new barriers in the framework of the Summit on Financial Markets and the World Economy, November 2008, and the G20 pledge, April 2009. They alleged that it will have a negative impact on the world trade and economy. One respondent stated that it is not rational for the U.S. to take trade protection actions such as the “Buy American—Recovery Act” provision, because it will not be useful for the American and global economy in promoting recovery from the current downturn. Another respondent stated that, to the extent 1605 imposes more restrictive requirements than previously existed, it represents a new barrier to trade in goods between the United States and Canada. One respondent found several aspects of section 1605 problematic because of their “inherent lack of clarity.”
Some United States industry associations also had concerns about section 1605. One objected that the real-life burdens of complying with these country-of-origin requirements cannot be overstated. This respondent concluded that, where the U.S. Government places a premium on
This final rule is focused on the optimal implementation of section 1605 in the FAR,
There are two main issues raised by respondents with regard to the applicability of the Buy American Act in contracts funded with Recovery Act funds.
• FAR 25.602(a) states that “None of the funds appropriated or otherwise made available by the Recovery Act may be used for a project for the construction, alteration, maintenance or repair of a public building or public work * * *”
• FAR 25.603(c), implementing the Trade Agreements Act, states that “For construction contracts with an estimated acquisition value * * *”
• FAR 52.225–21(b)(2) states, “The contractor shall use only domestic construction material in performing this contract * * *.”
The scope of this rule is established, in accordance with section 1605(a) of the Recovery Act, as applying restrictions to “a project for the construction, alteration, maintenance, or repair of a public building or public work.” The final rule has clarified at FAR 25.602 that the agency determines the scope of the project and conveys this to the contractor through the specified applicability of the Recovery Act provision and clause in the contract.
However, the statute can only be implemented through clauses that go into a specific construction contract. Each contract can only impose requirements applicable to that particular contract. Therefore, the term “contract” is used when the interim rule is addressing a requirement that is specific to a contractor or contract, particularly as used in the provisions and clauses.
A respondent contended that the narrow interpretation of manufactured goods “ignores common sense and well-established precedent.” According to the respondent, the rule equates manufactured goods to construction material and limits the applicability to construction materials that are incorporated into a public building or work.
Another respondent stated that the rule should apply to all manufactured goods—not just construction materials, contending that manufactured goods “used in the project” means “all hazmat suits, tool belts, masks, tarps, covers, safety straps, construction clothing, gloves,
A respondent stated that regulations for public works projects must require that all manufactured goods, including textile products, must be manufactured in the United States, as intended by the Recovery Act.
On the other hand, a respondent expressed concern that the perceived requirement that all manufactured products on the construction site are covered is proving disastrous for American equipment manufacturers. This respondent stated that construction equipment manufacturers provide the machines that improve operations and reduce costs of any infrastructure project. The process to verify and prove 100 percent U.S. content of each piece of equipment is onerous.
Some respondents expressed support for the Councils' approach in FAR subpart 25.6 of treating iron, steel, and manufactured goods as another way of describing “construction material: As that term has been understood and applied with respect to 41 U.S.C. 10a–10d in FAR subpart 25.2 and its associated clauses.”
Therefore, when applied to a construction contract, FAR subpart 25.6 and the associated construction clauses use the standard definition of “construction material” at FAR 25.003 that is familiar to contractors and contracting officers. There is a long series of Government Accountability Office (GAO) decisions and case law that then can be applied without completely starting over. For use in a construction contract, the Councils interpreted “manufactured goods used in the project” to be comparable to the long-standing definition of “construction material” as an “article, material, or supply brought to the construction site by the contractor or a subcontractor for incorporation into the building or work.” Review of the existing case law clarifies the many possible nuances relating to construction material and its delivery to the site. Rather than “ignoring well established precedent,” the Councils relied on well-established precedent. The FAR has never applied domestic source restrictions to such items as hazmat suits, tool belts, masks, tarps, covers, safety straps, construction clothing, and gloves, which are used in a construction project by the contractor but are not incorporated into the construction project. Further, the interim rule did not apply the Recovery Act Buy American requirement of section 1605 to equipment used at the construction site, because it is not incorporated into the construction project. These items are not deliverables to the Government, but remain the property of the contractor. The contractor may already have purchased these items before commencement of the contract, and may continue to use them on subsequent contracts. Therefore, their purchase is not generally subject to restrictions in the terms of the contract.
There were many comments on the issue of manufacture and substantial transformation.
Three respondents recommended allowing either manufacture (perhaps combined with the component test) or substantial transformation. According to one of the respondents, allowing both models to determine when a product has been manufactured in the United States ensures greatest flexibility. This respondent believed that this is only relevant below the Trade Agreements Act threshold,
Therefore, the final rule continues to utilize the FAR language that parallels the pre-existing construction contract definition of domestic construction material, requiring manufacture in the United States.
A respondent stated that the FAR rule should allow contractors to utilize imported steel slab as raw material feed stock—and substantially transform that slab in the United States into flat rolled steel (hot rolled, cold rolled, galvanized,
Another respondent, a carbon steel finishing mill, was concerned that steel can be either the construction material itself or a component of some other manufactured product (such as welded steel pipe). The respondent noted that a manufactured good may consist of only one component.
One respondent approved of the distinction between “steel used as a construction material” and “steel used in a construction material” but requested clarification of the boundaries of these two categories in the final rule. The respondent proposed that the boundary should be between—
• Steel goods delivered to the construction site directly from a steel mill (or its warehouse distributor) (
• Steel goods that have been further processed from intermediate, non-construction material products produced by a steel mill, into manufactured goods delivered to the construction site.
Alternatively, the respondent offered another definition of “steel used in a construction material”—“all steel goods except steel goods delivered to the construction site directly from a steel mill (or its warehouse/distributor) for use as a construction material.”
The interim rule separated manufactured construction material into two main categories: Iron or steel used as a construction material and “other” manufactured construction material. The interim rule made clear that manufactured construction material that consisted wholly of iron or steel must be produced in the United States, including all stages of production except metallurgical processes involving refinement of steel additives. It also stated that “other” manufactured construction material would require manufacture in the United States, but imposed no requirement on the components or subcomponents in this category of “other” manufactured construction material.
The interim rule is not clear, however, with regard to treatment of construction material that consists predominantly, but not wholly, of iron or steel. Some respondents assumed that all construction material would fall in the “other” category unless it was wholly of iron or steel. Others interpreted, as was intended, that the “other” category was to cover material which did not consist wholly or predominantly of iron or steel.
The Councils re-examined the requirement of the statute and how best to convey these requirements in the regulations. Because iron and steel are singled out for specific mention in the
In view of this policy clarification, the proposal to treat foreign slab as a “component” of other manufactured goods, not requiring production in the United States, is not acceptable, because the resultant construction material consists wholly or predominantly of iron or steel, and allowing foreign slab would not meet the objectives of the law.
The Councils have made changes to the policy at FAR 25.602 to clarify the restriction on the production of iron and steel and have revised the definitions of “domestic construction material” in FAR 25.601 and paragraph (a) of the FAR clauses at 52.225–21 and 52.225–23, specifying that all of the iron or steel in manufactured construction material that consists wholly or predominantly of iron or steel shall be produced in the United States, but the origin of the raw materials of the iron or steel is not restricted.
On the other hand, a different respondent believed that the fact that the regulations permit foreign steel or iron used as components or subcomponents of other manufactured construction material to be considered domestic construction materials as long as the manufacturing is done in the United States is a sound and practical decision. This respondent commented that the rule allows U.S. companies flexibility to prudently source from both American and foreign vendors to manage costs, while promoting U.S. manufacture.
As stated in the prior section, iron and steel components are only exempt from the restriction of section 1605 if the construction material does not consist wholly or predominantly of iron or steel.
Many other respondents strongly argued for inclusion of a “component test,” often citing the Buy American Act as a precedent.
• One respondent stated that the costs of all the domestic components in the final product must exceed 50 percent of the cost of all the components.
• A respondent stated that Congress' deliberate inclusion of the term “manufactured goods” was plainly intended to be under the precedent established under the Buy American Act. Yet another respondent stated that the interim rule does not meet the requirements of section 1605 because domestic content requirements for components and subcomponents parts have been omitted. This respondent also objected that the interim rule has ignored a long history of applying a domestic content rule in determining if a good is produced in the United States for purposes of enforcing domestic source restrictions. According to the respondent, OMB acknowledges that the two-part test relied upon is from the Buy American Act, then simply waives the domestic content part of the 1933 Act's text. Desiring an expeditious flow of funding cannot trump the statutory requirement to procure domestically produced goods. Longstanding interpretation of domestic manufactured goods under the Buy American Act also comports with Congressional intent to save and create manufacturing jobs.
• A respondent was disturbed that the interim rule explicitly rejected the use of a component test, one of the minimal Buy American Act standards for rule of origin. The respondent contended that allowing for the use of non-domestic component parts will have a significant impact on the job-creation ability of the stimulus.
• Two respondents stated that the Councils should adopt a clear rule defining the concept of domestic manufacture consistent with the well-established standard of substantial transformation and a 50 percent component content standard (by cost). The FAR should not confer domestic status simply as a result of minor processing or mere assembly in the United States.
The following matrix summarizes the requirements for domestic construction material in projects that use Recovery Act funds.
FAR subpart 25.4 states that it does not apply to acquisitions set aside for small businesses. FAR 25.603(c) has a cross reference to FAR subpart 25.4.
A respondent stated that ambiguities in the interim rule were open to interpretation by Government agencies on multiple levels. In the absence of examples of permissible procurement from foreign sources, the business community must await test cases to determine whether, for example, the letter of the law in terms of the WTO GPA signatory exceptions to the exclusionary principles will truly apply. The respondent believed that this ambiguity serves as a de facto obstacle to foreign suppliers engaging in commerce or any form of business alliance with American bidders.
A non-U.S. respondent stated that access to the U.S. procurement market has been further limited in areas not covered by the WTO GPA. Their preference would be non-application of the new requirements to European Union member countries.
Two foreign respondents also wanted to emphasize that the United States should uphold the G20 statement in implementing the Recovery Act Buy American provisions. One stated that, for acquisitions below the WTO GPA threshold of $7,443,000 for construction, the new discriminatory procurement requirements would apply in relation to goods from Recovery Act designated countries.
Further, the clarification of “produced in the United States” (FAR 25.602(a)(1)) makes clear that iron and steel components will only be tracked if the construction material is a manufactured construction material that consists wholly or predominantly of iron or steel.
Two respondents noted that the “public interest” exception does not specify criteria for the agency head to use. One of these respondents asked if there are special procedures that should be included in the FAR.
With regard to the second comment, the Councils note that the language for this exception is modeled on the public interest exception currently in use for the Buy American Act at FAR 25.103(a). The public interest exception may only be authorized by the agency head (with power of redelegation) and is used infrequently. The FAR includes no special procedures so that agency heads retain appropriate flexibility.
This respondent also requested that the contract list all foreign material
The final rule includes, at FAR 25.603(b), a requirement to provide to the Administrator for Federal Procurement Policy and to the Recovery Accountability and Transparency Board a copy of a determination made in accordance with FAR 25.603(a) concurrent with its provision to the
With regard to the commercial IT exception, it applies only to the Buy American Act. The Recovery Act exceptions are explicitly stated in section 1605 and are not identical to the Buy American Act exceptions.
Recovery Act-designated countries were identified from the language of the statute, the Committee report, and consultation with the United States Trade Representative. Caribbean Basin countries were not included as Recovery Act-designated countries because they are not covered by an international agreement.
One respondent noted that the OMB grants guidance includes examples of “public building.” The respondent would like to know whether a public building in the FAR is the same as a public building in the OMB guidance.
The final revised FAR provisions include the definition from FAR 22.401 and add examples of public buildings and public works from the OMB grants guidance.
It is our understanding that the OMB grants coverage will be conformed to the FAR terminology to use “manufacture” in lieu of “substantially transformed.” The Councils and OMB are not aware of any other areas where the OMB guidance and this FAR rule are not aligned.
Language in the Recovery Act exempted the Federal Highway Administration (FHA) from section 1605. It is appropriate that FHA maintain separate regulations.
Further, contracting authorities that do not comply with the FAR, and thereby with international commitments, should be reported and are subject to sanctions.
Section 4101 of Public Law 103–355, the Federal Acquisition Streamlining Act (FASA) (41 U.S.C. 429), governs the applicability of laws to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. It is intended to limit the applicability of laws to them. FASA provides that if a provision of law contains criminal or civil penalties, or if the Federal Acquisition Regulatory Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the simplified acquisition threshold, the law will apply to them.
The FAR Council determined, for the interim rule, that it should apply to contracts or subcontracts at or below the simplified acquisition threshold, as defined at FAR 2.101. The public comments received did not cause the FAR Council to modify this position for the final rule.
This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does apply; however, the information collection requirements imposed by the FAR provisions 52.225–22 and 52.225–24 are currently covered by the approved information collection requirements for FAR provisions 52.225–9 and 52.225–11 (OMB Control number 9000–0141, entitled Buy America Act—Construction—FAR Sections Affected: Subpart 25.2; 52.225–9; and 52.225–11). No public comments were received regarding the data elements, the burden, or any other part of the collection.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(b) * * *
(2) * * *
(2) 52.225–1 and 52.225–3, see the definition in 52.225–1(a) and 52.225–3(a);
(3) 52.225–9 and 52.225–11, see the definition in 52.225–9(a) and 52.225–11(a); and
(4) 52.225–21 and 52.225–23, see the definition in 52.225–21(a) and 52.225–23(a).
(c) * * *
(4) * * * If the construction material consists wholly or predominantly of iron or steel, the iron or steel must be produced in the United States.
(1)(i) An unmanufactured construction material mined or produced in the United States;
(ii) A construction material manufactured in the United States, if—
(A) The cost of the components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or
(B) The construction material is a COTS item;
(2) Except that for use in subpart 25.6, see the definition in 25.601.
This subpart implements section 1605 in Division A of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–5) (Recovery Act) with regard to manufactured construction material and the Buy American Act with regard to unmanufactured construction material. It applies to construction projects that use funds appropriated or otherwise provided by the Recovery Act.
The revised and added text reads as follows:
(1) An unmanufactured construction material mined or produced in the United States. (The Buy American Act applies.)
(2) A manufactured construction material that is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States. (Section 1605 of the Recovery Act applies.)
Except as provided in 25.603—
(a) None of the funds appropriated or otherwise made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless the
(1) All of the iron, steel, and manufactured goods used as construction material in the project are produced or manufactured in the United States.
(i) All manufactured construction material must be manufactured in the United States.
(ii)
(B) The requirement in paragraph (a)(1)(ii)(A) of this section does not apply to iron or steel components or subcomponents in construction material that does not consist wholly or predominantly of iron or steel.
(iii)
(iv)
(B) If a wooden window frame is delivered to the site as a single construction material, there is no restriction on any of the components, including the steel lock on the window frame; or
(2) If trade agreements apply, the manufactured construction material shall either comply with the requirements of paragraph (a)(1) of this subsection, or be wholly the product of or be substantially transformed in a Recovery Act designated country;
(b) Manufactured materials purchased directly by the Government and delivered to the site for incorporation into the project shall meet the same domestic source requirements as specified for manufactured construction material in paragraphs (a)(1) and (a)(2) of this section; and
(c) A project may include several contracts, a single contract, or one or more line items on a contract.
Except as provided in 25.603, use only unmanufactured construction material mined or produced in the United States, as required by the Buy American Act or, if trade agreements apply, unmanufactured construction material mined or produced in a designated country may also be used.
(a)(1) When one of the following exceptions applies, the contracting officer may allow the contractor to incorporate foreign manufactured construction materials without regard to the restrictions of section 1605 of the Recovery Act or foreign unmanufactured construction material without regard to the restrictions of the Buy American Act:
(i)
(ii)
(iii)
(2) In addition, the head of the agency may determine that application of the Buy American Act to a particular unmanufactured construction material would be impracticable.
(b)
(1) The contracting officer shall list the excepted materials in the contract; and
(2) For determinations with regard to the inapplicability of section 1605 of the Recovery Act, unless the construction material has already been determined to be domestically nonavailable (
(i) The title “Buy American Exception under the American Recovery and Reinvestment Act of 2009”;
(ii) The dollar value and brief description of the project; and
(iii) A detailed justification as to why the restriction is being waived.
(c)
(2) For purposes of applying section 1605 of the Recovery Act to evaluation of manufactured construction material, designated countries do not include the Caribbean Basin Countries.
The revised text reads as follows:
(c) * * *
(1)
The revised and added text reads as follows:
(a) * * *
(1) Use an evaluation factor of 25 percent, applied to the total offered price of the contract, if foreign manufactured construction material is incorporated in the offer based on an exception for unreasonable cost of comparable domestic construction material requested by the offeror.
(2) In addition, use an evaluation factor of 6 percent applied to the cost of foreign unmanufactured construction material incorporated in the offer based on an exception for unreasonable cost of comparable domestic unmanufactured construction material requested by the offeror.
(b) If the solicitation specifies award on the basis of factors in addition to cost or price, apply the evaluation factors as specified in paragraph (a) of this section and use the evaluated price in determining the offer that represents the best value to the Government.
(c) * * *
(4) If the noncompliance is sufficiently serious, consider exercising appropriate contractual remedies, such as terminating the contract for default. Also consider preparing and forwarding a report to the agency suspending or debarring official in accordance with subpart 9.4. If the noncompliance appears to be fraudulent, refer the matter to other appropriate agency officials, such as the agency's inspector general or the officer responsible for criminal investigation.
(e) * * *
(2) If these Recovery Act provisions and clauses are only applicable to a project consisting of certain line items in the contract, identify in the schedule the line items to which the provisions and clauses apply.
(3) When using clause 52.225–23, list foreign construction material in paragraph (b)(3) of the clause as follows:
(i)
(ii)
(A) Manufactured construction material from a Recovery Act designated country other than Bahrain, Mexico, or Oman; or
(B) Unmanufactured construction material from a designated country other than Bahrain, Mexico, or Oman.
The revised and added text reads as follows:
(a) * * *
(1) An unmanufactured construction material mined or produced in the United States. (The Buy American Act applies.)
(2) A manufactured construction material that is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States. (Section 1605 of the Recovery Act applies.)
(b) * * *
(1) * * *
(i) Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111–5), by requiring, unless an exception applies, that all manufactured construction material in the project is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States (produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, except metallurgical processes involving refinement of steel additives); and
(ii) The Buy American Act (41 U.S.C. 10a–10d) by providing a preference for unmanufactured construction material mined or produced in the United States over unmanufactured construction material mined or produced in a foreign country.
(4) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Government determines that—
(i) The cost of domestic construction material would be unreasonable;
(A) The cost of domestic manufactured construction material, when compared to the cost of comparable foreign manufactured construction material, is unreasonable when the cumulative cost of such material will increase the cost of the contract by more than 25 percent;
(B) The cost of domestic unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of comparable foreign unmanufactured construction material by more than 6 percent;
(ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality;
(iii) The application of the restriction of section 1605 of the Recovery Act to a particular manufactured construction material would be inconsistent with the public interest or the application of the Buy American Act to a particular unmanufactured construction material would be impracticable or inconsistent with the public interest.
The revised and added text reads as follows:
(c) * * *
(1) * * *
(i) 25 percent of the offered price of the contract, if foreign manufactured construction material is incorporated in the offer based on an exception for unreasonable cost of comparable manufactured domestic construction material; and
(2) If the solicitation specifies award on the basis of factors in addition to cost or price, the Contracting Officer will apply the evaluation factors as specified in paragraph (c)(1) of this provision and use the evaluated price in determining the offer that represents the best value to the Government.
(3) Unless paragraph (c)(2) of this provision applies, if two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost of comparable domestic construction material.
The revised and added text reads as follows:
(a) * * *
(1) A World Trade Organization Government Procurement Agreement (WTO GPA) country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, or United Kingdom);
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago).
(1) An unmanufactured construction material mined or produced in the United States. (The Buy American Act applies.)
(2) A manufactured construction material that is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States. (Section 1605 of the Recovery Act applies.)
(b)
(i) Section 1605 of the Recovery Act by requiring, unless an exception applies, that all manufactured construction material in the project is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States (produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, except metallurgical processes involving refinement of steel additives); and
(ii) The Buy American Act by providing a preference for unmanufactured construction material mined or produced in the United States over unmanufactured construction material mined or produced in a nondesignated country.
(2) The Contractor shall use only domestic construction material, Recovery Act designated country manufactured construction material, or designated country unmanufactured construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.
(3) The requirement in paragraph (b)(2) of this clause does not apply to the construction materials or components listed by the Government as follows:
[
(4) The Contracting Officer may add other construction material to the list in paragraph (b)(3) of this clause if the Government determines that—
(i) The cost of domestic construction material would be unreasonable;
(A) The cost of domestic manufactured construction material is unreasonable when the cumulative cost of such material, when compared to the cost of comparable foreign manufactured construction material, other than Recovery Act designated country construction material, will increase the overall cost of the contract by more than 25 percent;
(B) The cost of domestic unmanufactured construction material is unreasonable when the cost of such material exceeds the cost of comparable foreign unmanufactured construction material, other than designated country construction material, by more than 6 percent;
(ii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act to a particular manufactured construction
(c) * * *
(3) Unless the Government determines that an exception to section 1605 of the Recovery Act or the Buy American Act applies, use of foreign construction material other than manufactured construction material from a Recovery Act designated country or unmanufactured construction material from a designated country is noncompliant with the applicable Act.
(b)
(i) Section 1605 of the Recovery Act, by requiring, unless an exception applies, that all manufactured construction material in the project is manufactured in the United States and, if the construction material consists wholly or predominantly of iron or steel, the iron or steel was produced in the United States (produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, except metallurgical processes involving refinement of steel additives); and
(ii) The Buy American Act by providing a preference for unmanufactured construction material mined or produced in the United States over unmanufactured construction material mined or produced in a nondesignated country.
(2) The Contractor shall use only domestic construction material, Recovery Act designated country manufactured construction material, or designated country unmanufactured construction material, other than Bahrainian, Mexican, or Omani construction material, in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.
The revised text reads as follows:
(c)
(i) 25 percent of the offered price of the contract, if foreign manufactured construction material is included in the offer based on an exception for the unreasonable cost of comparable manufactured domestic construction material; and
(ii) 6 percent of the cost of foreign unmanufactured construction material included in the offer based on an exception for the unreasonable cost of comparable domestic unmanufactured construction material.
(2) If the solicitation specifies award on the basis of factors in addition to cost or price, the Contracting Officer will apply the evaluation factors as specified in paragraph (c)(1) of this provision and use the evaluated cost or price in determining the offer that represents the best value to the Government.
(3) Unless paragraph (c)(2) of this provision applies, if two or more offers are equal in price, the Contracting Officer will give preference to an offer that does not include foreign construction material excepted at the request of the offeror on the basis of unreasonable cost.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This
For effective dates see separate documents, which follow.
The analyst whose name appears in the table below. Please cite FAC 2005–45 and the specific FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2005–45 amends the FAR as specified below:
This final rule amends the FAR to implement section 807 of the Ronald W.
This is the second review of FAR acquisition-related thresholds. The Councils published a proposed rule in the
The effect of the final rule on heavily-used thresholds is the same as stated in the preamble to the proposed rule:
• The micro-purchase base threshold of $3,000 (FAR 2.101) is not changed.
• The simplified acquisition threshold (FAR 2.101) is raised from $100,000 to $150,000.
• The FedBizOpps preaward and post-award notices (FAR part 5) remain at $25,000 because of trade agreements.
• Commercial items test program ceiling (FAR 13.500) is raised from $5,500,000 to $6,500,000.
• The cost or pricing data threshold (FAR 15.403–4) is raised from $650,000 to $700,000.
• The prime contractor subcontracting plan (FAR 19.702) floor is raised from $550,000 to $650,000, and the construction threshold of $1,000,000 increases to $1,500,000.
This final rule amends the FAR by redefining “cost or pricing data,” adding a definition of “certified cost or pricing data,” and changing the term “information other than cost or pricing data,” to “data other than certified cost or pricing data.” The rule clarifies the existing authority for contracting officers to require certified cost or pricing data or data other than certified cost or pricing data, and the existing requirements for submission of the various types of pricing data. The rule is required to eliminate confusion and misunderstanding, especially regarding the authority of the contracting officer to request data other than certified cost or pricing data when there is no other means to determine that proposed prices are fair and reasonable. Most significantly, the rule clarifies that data other than certified cost or pricing data may include the identical types of data as certified cost or pricing data but without the certification. Because the rule clarifies existing requirements, it will have only minimal impact on the Government, offerors, and automated systems.
This final rule converts the interim rule published in the
Employee Benefits Security Administration, Labor.
Proposed rule.
This document contains a proposed rule that, if adopted, would supersede the existing procedure governing the filing and processing of applications for administrative exemptions from the prohibited transaction provisions of the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code of 1986 (the Code), and the Federal Employees' Retirement System Act of 1986 (FERSA). The Secretary of Labor is authorized to grant exemptions from the prohibited transaction provisions of ERISA, the Code, and FERSA and to establish an exemption procedure to provide for such relief. The proposed rule would clarify and consolidate the Department of Labor's exemption procedures and provide the public with a more comprehensive description of the prohibited transaction exemption process.
To facilitate the receipt and processing of responses, the Department encourages interested persons to submit their responses electronically by e-mail to:
Mr. Mark W. Judge, Office of Exemption Determinations, Employee Benefits Security Administration, Room N–5700, U.S. Department of Labor, Washington, DC 20210, telephone (202) 693–8550. This is not a toll-free number.
Part 4 of Title I of ERISA establishes an extensive framework of standards and rules governing the conduct of plan fiduciaries; collectively, these rules are designed to safeguard the integrity of employee benefit plans. As part of this structure, section 406 of ERISA generally prohibits the fiduciary of a plan from causing such plan to engage in a variety of transactions with certain related parties, unless a statutory or administrative exemption applies to the transaction. These related parties (which include plan fiduciaries, sponsoring employers, unions, service providers, and other persons who may be in a position to exercise improper influence over a plan) are defined as “parties in interest” in section 3(14) of ERISA.
To supplement these provisions, sections 406 and 407(a) of ERISA impose restrictions on the nature and extent of plan investments in assets such as “employer securities” (as defined in section 407(d)(1) of ERISA) and “employer real property” (as defined in section 407(d)(2) of ERISA). Most of the transactions prohibited by section 406 of ERISA are likewise prohibited by section 4975 of the Code, which imposes an excise tax on those transactions to be paid by each “disqualified person” (defined in section 4975(e)(2) of the Code in virtually the same manner as the term “party in interest”) who engages in the prohibited transactions.
Both ERISA and the Code contain various statutory exemptions from the prohibited transaction rules; these exemptions were enacted by Congress to prevent the disruption of a number of customary business practices involving employee benefit plans. The enumerated statutory exemptions generally afford relief for, among other things, loans to participants, the provision of services necessary for the operation of a plan for no more than reasonable compensation, loans to employee stock ownership plans, and deposits in certain financial institutions regulated by state or federal agencies.
In addition, section 408(a) of ERISA authorizes the Secretary of Labor to grant administrative exemptions (on either an individual or a class basis) from the restrictions of ERISA sections 406 and 407(a) in instances where the Secretary makes findings on the record that such relief is (i) administratively feasible, (ii) in the interests of the plan and its participants and beneficiaries, and (iii) protective of the rights of participants and beneficiaries of such plan. Similarly, section 4975(c)(2) of the Code authorizes the Secretary of the Treasury or his delegate to grant administrative exemptions from the prohibitions of Code section 4975(c)(1) upon making the same findings. Before an exemption is granted, notice of its pendency must be published in the
Sections 408(a) of ERISA and 4975(c)(2) of the Code also direct the Secretary of Labor and the Secretary of the Treasury, respectively, to establish procedures for granting administrative
Pursuant to the foregoing statutory provisions, the Secretaries jointly issued an exemption procedure on April 28, 1975 (ERISA Procedure 75–1, 40 FR 18471, also issued as Rev. Proc. 75–26, 1975–1 C.B. 722). Under this procedure, a person seeking an exemption under both section 408(a) of ERISA and section 4975 of the Code was obliged to file an exemption application with both the Internal Revenue Service and the Department of Labor. However, the requirement of seeking exemptive relief for the same transaction from two separate federal departments soon proved administratively cumbersome.
To resolve this problem, section 102 of Presidential Reorganization Plan No. 4 of 1978 (3 CFR 332 (1978),
FERSA, enacted in 1986, contained prohibited transaction rules similar to those found in ERISA and the Code that are applicable to parties in interest with respect to the Federal Thrift Savings Fund established by FERSA. The Secretary of Labor is directed under FERSA to prescribe, by regulation, a procedure for granting administrative exemptions from certain of those prohibited transactions.
Four years after the enactment of FERSA, the Department published a final regulation (29 CFR 2570.30
As noted previously, section 408(a) of ERISA authorizes the Secretary of Labor to grant administrative exemptions on either an individual or a class basis. Class exemptions provide general relief from the restrictions of ERISA, the Code, and/or FERSA to those parties in interest who engage in the categories of transactions described in the exemption and who also satisfy the conditions stipulated by the exemption. In their broad applicability and policy implications, class exemptions possess several of the characteristics of agency rulemaking; accordingly, persons who are in conformity with all of the requirements of a class exemption are not ordinarily required to seek an individual exemption for the same transaction from the Department. Individual exemptions, by contrast, involve case-by-case determinations as to whether the specific facts represented by an applicant concerning an exemption transaction (as well as the conditions applicable to such a transaction) support a finding by the Department that the requirements for relief from the prohibited transaction provisions of ERISA, the Code, and/or FERSA have been satisfied in a particular instance.
While the vast majority of administrative exemptions issued by the Department have been the product of requests for relief from individual applicants and/or the employee benefits community, section 408(a) of ERISA also authorizes the Department to initiate exemptions on its own motion. Recent examples of such Department-initiated exemptions include Prohibited Transaction Exemption (PTE) 2002–51 (class exemption, as amended in 2006, providing relief from the sanctions contained in section 4975 of the Code for certain eligible transactions identified in the Department's Voluntary Fiduciary Correction Program) and PTE 2003–39 (class exemption providing relief for the receipt of consideration by a plan from a party in interest in connection with the release of a claim in settlement of actual or threatened litigation).
In considering individual exemption requests from applicants, the Department has consistently exercised its authority under ERISA section 408(a) by carefully examining the decision-making process utilized by a plan's fiduciaries with respect to a transaction. In applying this policy, the Department determines whether it can make findings that the transaction is designed to adequately safeguard the interests of the plan's participants and beneficiaries. Therefore, the Department requires, as a condition of every exemption, that the terms of the subject transaction be no less favorable to the plan than the terms which the plan could obtain in an arm's-length transaction with an unrelated party. Depending on the facts and circumstances of a particular transaction, additional conditions for exemptive relief generally are required.
The Department has followed this policy in considering requests for either prospective or retroactive exemptive relief. In general, the Department does not make determinations concerning the appropriateness, attractiveness, or prudence of the investment proposals submitted by exemption applicants. However, the Department ordinarily will not give favorable consideration to an exemption request if the Department believes that the proposed transactions are inconsistent with the fiduciary responsibility provisions of sections 403 and 404 of ERISA. Accordingly, the Department requires that an exemption transaction be designed to minimize the potential for conflicts of interest or self-dealing. This approach allows qualified professionals or responsible fiduciaries to assess the prudence of a transaction independently and in a manner that is protective of the plan's assets. Moreover, the structure of the transaction under consideration should preclude unilateral action by the applicant which could disadvantage the investing plan.
In keeping with the policy of evaluating the decisional processes surrounding a transaction, many of the exemptions issued by the Department are conditioned on the retention of an independent fiduciary to represent the interests of the plan, particularly where a plan fiduciary has interests with respect to a transaction which may conflict with his or her fiduciary duties to the plan. In these situations, an independent fiduciary typically will
Over time, the Department has issued guidance explaining its policies and practices relating to the consideration of exemption applications. In 1985, the Department published a statement of policy concerning the issuance of retroactive exemptions from the prohibited transaction provisions of section 406 of ERISA and section 4975 of the Code (ERISA Technical Release 85–1, January 22, 1985). This statement noted that, in evaluating future applications for retroactive exemptions, the Department would ordinarily take into account a variety of objective factors in determining whether a plan fiduciary had exhibited good faith conduct in connection with the past prohibited transaction for which relief is sought (such as whether the fiduciary had utilized a contemporaneous independent appraisal or reference to an objective third-party source,
In 1995, the Department issued a publication,
During its first two decades of evaluating individual exemption requests, the Department observed that a significant proportion involved transactions, terms, and safeguards which were remarkably similar to those contained in previously granted exemptions. Accordingly, to facilitate the prompt consideration of such routine applications, the Department published an administrative class exemption, PTE 96–62 (61 FR 39988 (July 31, 1996), as amended at 67 FR 44622 (July 3, 2002)). Under this class exemption (commonly referred to as EXPRO), the Department may authorize exemptive relief, on an expedited basis, for certain prospective transactions that would otherwise be prohibited under ERISA, the Code, or FERSA, provided that the applicant satisfies all of the conditions of the EXPRO exemption. Among other things, PTE 96–62 stipulates that the transaction for which an applicant seeks authorization must be substantially similar in all material respects to at least two other transactions for which the Department recently granted administrative relief from the same restriction.
In the years since the current exemption procedure was adopted in 1990, the accelerated development and expanded usage of various electronic media for the transmission of information—including the Internet, electronic mail (e-mail), and facsimile machines—has provided the Department with more technologically advanced means for discharging its responsibilities to the public. This rapid transformation has also altered the manner in which the Department ordinarily processes and disseminates prohibited transaction exemptions. In 1996, the Department established a Web site,
In 2002, Congress enacted the E-Government Act (Pub. L. 107–347, 116 Stat. 2915) to facilitate Internet-based public access to, and participation in, the Federal rulemaking process; to implement the requirements of this statute, the Office of Management and Budget (OMB) launched a Web site,
The proposed regulation contained in this document updates the prohibited transaction exemption procedure to reflect changes in the Department's exemption practices since the current procedure was implemented in 1990. Among other things, key elements of the exemption policies and guidance currently found in ERISA Technical Release 85–1 and the 1995 Exemption Publication would be consolidated within the text of a unitary, comprehensive final regulation, thus reducing the regulatory burdens on applicants for exemptive relief. Adoption of these revised procedures should also encourage the prompt and fair consideration of all exemption applications by clarifying the types of information and documentation generally required for a complete filing, by affording expanded opportunities for the electronic submission of information and comments relating to an exemption, and by providing plan participants and other interested persons with a more thorough understanding of the exemption under consideration.
The current exemption procedure regulation at 29 CFR part 2570, subpart B consists of 23 discrete sections (§ 2570.30 through § 2570.52), arranged by topic and generally reflecting the chronological order of steps involved in processing an exemption application. This proposed revision to the exemption procedure retains the section-by-section topical structure of the existing regulation, along with most of the operative language. However, the Department also proposes several important substantive amendments; these changes are summarized below on a section-by-section basis.
Section 2570.30(a) of the proposed regulation describes the statutory provisions of ERISA, the Code, and FERSA under which the Department is authorized to establish procedures governing the granting of administrative exemptions, and cites appropriately the Department's jurisdictional mandate pertaining to exemptions under Presidential Reorganization Plan No. 4 of 1978. A revised section 2570.30(b) describes the extent of exemptive relief generally permissible under section 408(a) of ERISA and corresponding sections of the Code and FERSA, including the availability (under limited circumstances) of retroactive relief for past prohibited transactions.
An updated § 2570.30(c) describes the authority of the Department to propose and issue administrative exemptions on its own motion. Currently, this authority is referenced somewhat awkwardly at the beginning of § 2570.32(a) under the section heading that describes “Persons who may apply for exemptions.” Apart from repositioning this regulatory language, the revised § 2570.30(c) also specifies the provisions of the updated exemption procedure regulation generally applicable to exemptions initiated on the Department's own motion.
In addition, proposed § 2570.30(d) incorporates language found in the text of prior granted exemptions emphasizing that the scope of exemptive relief available from the Department does not extend to certain other fiduciary provisions of ERISA or to the exclusive benefit rule found in section 401(a) of the Code. Proposed sections 2570.30(e) and (f) replicate language in the current regulation relating to the provision of oral advice by Department employees concerning an exemption, and the handling of exemption applications that are filed solely under section 408(a) of ERISA or solely under section 4975(c)(2) of the Code.
Section 2570.31 of the current exemption procedure regulation defines the following terms for purposes of the exemption procedures: Affiliate, class exemption, Department, exemption transaction, individual exemption, party in interest and pooled fund. The Department proposes to add three additional definitions, a qualified appraisal report, a qualified independent appraiser, and a qualified independent fiduciary, to the regulation. These three definitions are referred to in the glossary of the Department's 1995 Exemption Publication, and are commonly used in individual and class exemptions.
Under § 2570.33(c) of the current regulation, an application for an individual exemption ordinarily will not receive separate consideration if the Department is considering a class exemption relating to the same type of transaction or transactions. Under the proposed regulation, however, this general rule may be waived in instances where (i) the issuance of the final class exemption may not be imminent, and (ii) the applicant can demonstrate that exigent circumstances compel it to seek immediate exemptive relief from the Department in order to protect the interests of the plan and its participants (such as the sale of an illiquid asset that has decreased in value).
Section 2570.34 of the current regulation describes the information to be included in every exemption application. An expanded § 2570.34(a)(2) would require the inclusion of a chronology of the events leading to the exemption transaction. In addition, as detailed below, section 2570.34 would be amended (through the addition of new subsections (c) and (d)) to incorporate key elements of the exemption policy and guidance currently found in the 1995 Exemption Publication, specifically with respect to the required content of the specialized statements that are obtained from independent appraisers and fiduciaries in support of an exemption transaction.
Under § 2570.34(d), the Department would require the disclosure of the following information from a qualified independent fiduciary: A copy of such fiduciary's engagement letter with the plan describing the duties the fiduciary will undertake on behalf of the plan; a detailed explanation of why the proposed transaction is in the interests of the participants and beneficiaries; a statement that, in instances where the transaction is ongoing, the fiduciary agrees to monitor the proposed transaction throughout its duration on behalf of the plan, taking any appropriate action to safeguard the interests of the plan; what qualifications the fiduciary has to perform these duties on behalf of the plan and the level of ERISA experience the person has; and a representation to the effect that such fiduciary understands and acknowledges his or her ERISA duties and responsibilities in acting as a fiduciary on behalf of the plan. The fiduciary must also disclose if it is related in any way to the employer or its principals, as well as the percentage of its current compensation that was derived from any party in interest (or any affiliate of the party in interest) involved in the exemption transaction. As a general matter, an independent fiduciary retained in connection with an exemption transaction must receive no more than a
Sections 2570.35(a)(5), (6), and (7) of the current regulation requires exemption applications to disclose information regarding whether the applicant or any of the parties to the exemption transaction is or has been, within a specified number of years past, a defendant in any lawsuit or criminal action concerning conduct as a fiduciary or other party in interest with respect to any employee benefit plan (§ 2570.35(a)(5)), convicted of a crime described in section 411 of ERISA (§ 2570.35(a)(6)), or under investigation or examination or engaged in litigation or a continuing controversy with certain Federal agencies (§ 2570.35(a)(7)). Section 2570.35(a)(7) also requires disclosure of whether any plan affected by the exemption transaction has been under such investigation or examination, or has been engaged in litigation or a continuing controversy, and further obligates the applicant to submit copies of all correspondence with the specified Federal agencies regarding the substantive issues involved in such proceedings which relate to compliance with the provisions of ERISA, provisions of the Code relating to plans, or provisions of FERSA.
The Department is revising this section to apprise applicants of the fax and e-mail information necessary to expedite delivery of the application or any other relevant information relating to the application. In addition, the Department is amending this section to require applicants to submit two paper copies of applications: One for the Department's file and one for the analyst's working copy, as well as an electronic version of the application.
As in the current regulation, this section would require an applicant to notify the Department in writing if it discovers that any material fact or representation contained in the application or in any documents or testimony provided in support of the application is inaccurate, if any such fact or representation changes during this period, or if, during the pendency of the application, anything occurs which may affect the continuing accuracy of such fact or representation. The Department proposes to amend this section to clarify that an applicant must also notify the Department of any material fact or representation that has been omitted from the exemption application. The determination whether, under the totality of the facts and circumstances, a particular statement contained in (or omitted from) an exemption application constitutes a material fact or representation is made by the Department. To the extent that a material representation is omitted, becomes inaccurate or changes, the prohibited transaction exemptive relief will no longer be available starting on the first day on which any one of these events occur.
Under the current rule, in instances where the Department has issued a tentative denial letter to an applicant pursuant to § 2570.38 and the applicant has timely notified the Department of its intent to submit additional written information in support of the exemption application, the applicant must submit such information within 30 days from the date on which it expressed its intent to provide the information. In order to promote the uniform and efficient consideration of such additional information, the Department proposes to amend this section by requiring that the applicant submit the additional written information within 40 days from the date of the tentative denial letter. An applicant may only request an extension of time to submit the additional information in situations where reasons beyond its control render it unable to furnish the information within the 40-day limit. Such requests for an extension of time for the submission of additional information also must be made by the applicant before the expiration of the foregoing 40-day period. The Department will only grant such requests for extension in unusual circumstances and for a limited period of time as determined, respectively, by
Under the current rule, the Department will attempt to schedule (in response to a request made by an applicant under § 2570.38(b)) a conference concerning a tentative denial letter within the 45-day period following the later of (1) the date the Department receives the applicant's request for a conference, or (2) the date the Department notifies the applicant, after reviewing additional information submitted pursuant to § 2570.39, that it is not prepared to propose the requested exemption. The Department proposes to amend this section by substituting a simplified procedure that is intended to facilitate the prompt and efficient scheduling of such conferences. In instances where the applicant has expressed both a request for a conference and an intent to submit additional information in support of the application, pursuant to proposed § 2570.39, the Department would schedule a conference at a mutually convenient date and time that occurs within 20 days after the date on which the Department has provided notification to the applicant that it remains unprepared to propose the requested exemption based upon the additional information submitted by the applicant. Alternatively, in instances where the applicant requests a conference without expressing an intent to submit additional information pursuant to proposed § 2570.39, the Department would schedule a conference at a mutually convenient date and time that occurs within 40 days after the date of the issuance of the tentative denial letter. An applicant may only request an extension of time to schedule a conference in situations where reasons beyond its control render it unable to attend a conference within the foregoing time frames. Such requests for an extension of time for scheduling a conference must also be made before the expiration of the respective 20-day and 40-day periods. The Department will only grant such requests for extension in unusual circumstances and for a brief period of time as determined, respectively, by the Department in its sole discretion.
Under the current rule, in instances where a conference has already been held, the applicant may submit to the Department within 20 days of the conference any additional data, arguments, or precedents discussed at the conference but not previously or adequately presented in writing. The Department proposes to amend this provision by permitting the applicant to request an extension of time for the submission of this additional information where reasons beyond the applicant's control render it unable to submit the information within the foregoing 20-day limit. Such requests for an extension must be made before the expiration of the 20-day period. The Department will only grant such requests for extension in unusual circumstances and for a brief period of time as determined, respectively, by the Department in its sole discretion.
Under section 2570.42 of the proposed regulation, the Department would publish a notice of proposed exemption in the
Section 2570.43 of the current regulation describes the methods that an applicant may use to notify interested persons of a proposed exemption and the required content of the notice. In addition to a copy of the Notice of Proposed Exemption published in the
In order to provide notice recipients with a clearer understanding of the exemption transaction under consideration, the Department proposes to amend § 2570.43 (through addition of new subsections (d) and (e)) to require that certain exemption applicants (
Section 2570.44 has been modified to clarify that if an applicant chooses to withdraw an application for exemption, such withdrawal generally shall not prejudice any subsequent applications for exemption filed by the applicant.
Under § 2570.46 of the current regulation, the Department requires that persons who may be adversely affected by the grant of an exemption from the fiduciary self-dealing provisions of section 406(b) of ERISA and corresponding sections of the Code and FERSA must be given an opportunity to demonstrate the existence of issues that can only be fully explored in the context of a hearing. When persuasive evidence of the existence of such issues is provided, the Department will grant the requested hearing. This procedure is consistent with the requirements of ERISA section 408(a), which precludes the Department from granting an exemption from the fiduciary self-dealing restrictions unless the Department affords an opportunity for a hearing and makes a determination on the record with respect to the three statutory findings required for granting an exemption. In addition, under § 2570.47 of the current regulation, the Department may schedule a hearing on its own motion concerning a proposed exemption if it determines that such a hearing would be useful in exploring issues relevant to the exemption.
Prior notice of a hearing on an exemption application has always been provided by the Department, and is also implicit in the existing language of § 2570.46(c) and § 2570.47(b), under which an applicant may satisfy its own notice of hearing obligations to interested persons by furnishing such individuals with a copy of the hearing notice previously published by the Department in the
Section 2570.48 of the proposed regulation describes the standards that must be satisfied for the Department to grant a final exemption. The language of the current exemption procedure regulation inadvertently omits the statutory requirement contained in both section 408(a) of ERISA and section 4975(c)(2) of the Code which stipulates that, prior to granting an exemption, the Department must make a finding that such relief is (1) administratively feasible, (2) in the interests of the plan's participants and beneficiaries, and (3) protective of the rights of the participants and beneficiaries of the plan. Accordingly, the text of the proposed regulation has been revised to conform to this statutory mandate.
Under § 2570.49(a), (b) and (c) of the current regulation, the Department describes the limits on the effect of exemptions. This section would be amended by adding a new subsection (d) stipulating that, for transactions that are continuing in nature, an exemption does not protect parties in interest from liability with respect to an exemption transaction if, subsequent to the granting of an exemption, there are material changes to the original facts and representations underlying such exemption or if one or more of the exemption's conditions are not met.
Thus, for example, in the case of a continuing exemption transaction such as a loan or a lease, if any of the material facts were to change after the exemption is granted, the exemption would cease to apply as of the date of such change. In the event of any such change, the parties in interest involved in the exemption transaction may apply for a new exemption to protect themselves from liability on or after the date of such change.
The Department invites comments from interested persons on all aspects of the proposed regulation. Comments should be addressed to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N–5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: Prohibited Transaction Exemption Procedures Proposed Regulation. Commenters are encouraged to submit their comments electronically to
Comments on this proposal should be submitted to the Department on or before October 14, 2010
Under Executive Order 12866 (58 FR 51735), the Department must determine whether a regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB). Section 3(f) of the
As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, the reporting burden (time and financial resources) is minimized, and the Department can properly assess the impact of collection requirements on respondents.
Currently, the Department is soliciting comments concerning the information collection request (ICR) included in the Proposed Rule for the Prohibited Transaction Exemption Procedures. A copy of the ICR may be obtained by contacting the person listed in the PRA Addressee section below.
The Department has submitted a copy of the proposed rule to OMB in accordance with 44 U.S.C. 3507(d) for review of its information collections. The Department is particularly interested in comments that:
(A) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(B) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(C) Enhance the quality, utility, and clarity of the information to be collected; and
(D) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Employee Benefits Security Administration. Although comments may be submitted through October 29, 2010, OMB requests that comments be received within 30 days of publication of the Proposed Rule for the Prohibited Transaction Exemption Procedures to ensure their consideration.
Both ERISA and the Code contain various statutory exemptions from the prohibited transaction rules. In addition, section 408(a) of ERISA authorizes the Secretary of Labor to grant administrative exemptions from the restrictions of ERISA sections 406 and 407(a), while section 4975(c)(2) of the Code authorizes the Secretary of the Treasury or his delegate to grant exemptions from the prohibitions of Code section 4975(c)(1). Sections 408(a) of ERISA and 4975(c)(2) of the Code also direct the Secretary of Labor and the Secretary of the Treasury, respectively, to establish procedures to carry out the purposes of these sections.
Under section 3003(b) of ERISA, the Secretary of Labor and the Secretary of the Treasury are directed to consult and coordinate with each other with respect to the establishment of rules applicable to the granting of exemptions from the prohibited transaction restrictions of ERISA and the Code. Under section 3004 of ERISA, moreover, the Secretary of Labor and the Secretary of the Treasury are authorized to develop jointly rules appropriate for the efficient administration of ERISA.
Under section 102 of Reorganization Plan No. 4 of 1978 (Reorganization Plan No. 4), the foregoing authority of the Secretary of the Treasury to issue exemptions under section 4975 of the Code was transferred, with certain enumerated exceptions not discussed herein, to the Secretary of Labor. Accordingly, the Secretary of Labor now possesses the authority under section 4975(c)(2) of the Code, as well as under section 408(a) of ERISA, to issue individual and class exemptions from the prohibited transaction rules of ERISA and the Code.
On April 28, 1975, the Department published ERISA Procedure 75–1 in the
Under the current exemption procedure regulation, in order to make exemption determinations, the Department requires full information regarding all aspects of the transaction, the parties, and the assets involved, which is an information collection request (ICR) for purposes of the PRA. Sections 2570.34 and 2570.35 of the current exemption procedure regulation describe the information that must be supplied by the applicant, such as: Identifying information (name, type of plan, EIN number, etc.); an estimate of the number of plan participants; a detailed description of the exemption transaction and the parties for which an exemption is requested; a statement regarding which section of ERISA is thought to be violated and whether transaction(s) involved have already been entered into; a statement of whether the transaction is customary in the industry; a statement of the hardship or economic loss, if any, which would result if the exemption were denied; a statement explaining why the proposed exemption would be administratively feasible, in the interests of the plan and protective of the rights of plan participants and beneficiaries; and several other statements. In addition, the applicant must certify that the information supplied is accurate and complete.
The amended rule proposed by the Department would expand the ICR contained in sections 2570.34 and 2570.35 of the current exemption procedure regulation in several respects. For instance, the current requirement of specialized statements from qualified independent appraisers, where applicable, would be clarified to include the appraiser's rationale, credentials, and a statement regarding the appraiser's independence from the parties involved in the transaction. In this connection, the appraisal report prepared by the independent appraiser must be current and not more than one year old as of the date of the transaction. In addition, the content of specialized statements submitted by qualified independent fiduciaries, where applicable, would be clarified to require the disclosure of information concerning the independent fiduciary's qualifications, duties, independence from the parties involved in the transaction, and current compensation. The content of specialized statements from other kinds of experts would also be clarified in the new regulation to require disclosure of information concerning the expert's qualifications and their independence from the parties involved in the transaction.
In addition, a new requirement contained in section 2570.43(d) and (e) of the proposal, if adopted, would provide the Department with the discretion to require an applicant to furnish interested persons with a Summary of Proposed Exemption (SPE). The Department expects this requirement to be used in instances where the proposed transaction is relatively complex, and the notice of proposed exemption may not be readily understandable by interested persons (
Finally, the Department also proposes to amend § 2570.43 to permit applicants to utilize electronic means (such as e-mail) to deliver notice to interested persons of a pending exemption, provided that the applicant can demonstrate satisfactory proof of electronic delivery to the entire class of interested persons.
In order to assess the hour and cost burden of the revision to the current ICR associated with the exemption procedure regulation, the Department updated its estimate of the number of exemption requests it expects to receive and the hour and cost burden associated with providing information required to be submitted by applicants, including the new information required under this proposal. The Department also adjusted its estimate of the labor rates for professional and clerical help, and the size of plans filing exemption requests with the Department. In the revised estimate, the costs of hiring outside service providers (such as, law firms specializing in ERISA, outside appraisers, and financial experts) are accounted for as a cost burden. Requirements related to these services are more explicitly specified in the proposed rule than they were in the previous procedure, and any paperwork costs associated with these requirements are built into the estimated fees for outside services. Additionally, mailing costs of the application are now built into the fees of the outside firm, as are costs for the new SPEs required under the proposal in certain circumstances.
Between 2005 and 2008, the Department received an average of 56 requests annually for prohibited transaction exemptions. For purposes of this analysis, the Department assumes that approximately the same number of applications will be received annually over the next three years.
The Department estimates that, on average, 10 hours of in-house legal professional and 10 hours of in-house clerical time will be spent preparing the documentation for the application that will be used by the outside counsel. Therefore, the Department estimates that preparing the application will require 560 in-house legal professional hours (56 applications times 10 hours) and 560 clerical hours (56 applications times 10 hours) for a total of 1,120 hours at an equivalent cost of $79,861.
For the notice to interested persons, the Department estimates that 25 applications will be published annually, and that approximately 17,175 notices to interested parties will be distributed.
An application for a prohibited transaction exemption generally is prepared and submitted by, or under the direction of, attorneys with specialized knowledge of ERISA. The Department assumes that these same attorneys will also prepare and distribute the notice to interested persons. Because of the large amount of paperwork that is prepared and submitted (applications average approximately 60 pages with varying numbers of supporting documents), the Department estimates that legal fees will total approximately $17,500 on average per case. This estimate includes potential meetings with DOL personnel as well as preparation of supplementary documents that are requested following some of these meetings and an SPE for some of the more complex cases. The Department estimates that the costs for the combined services of the qualified independent fiduciary and appraiser/expert will total approximately $10,000.
The Department estimates that 17,175 notices to interested persons will be sent, and that 13,470 of the notices (80 percent) will distributed via first class mail with a material cost of $.05 per page and distribution costs of $.44 per notice. This generates an estimated cost of $6,733. The Department further estimates that 2,576 of the notices (15 percent of the total number of notices) will be distributed electronically and 859 (5 percent) will be distributed by alternative means approved by the Department.
The Department estimates that SPEs will be requested with respect to 8 submissions (15% of the 56 submissions) per year, and that the SPEs will be sent with the notices. Based on an average plan size of 687 participants per plan, this results in the distribution of 5,496 SPEs, of which 4,397 (80 percent) will be mailed. The material cost associated with mailing the 4,397 SPEs at $.05 per page is $220. Therefore, the total cost burden for distribution of the notices and SPEs is estimated to be approximately $6,953 ($6,733 for the notices + $220 for the cost of including the SPEs).
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of the RFA, the Department continues to consider a small entity to be an employee benefit plan with fewer than 100 participants.
By this standard, the Department estimates that nearly half the requests for exemptions are from small plans. Thus, of the approximately 613,000 ERISA-covered small plans, the Department estimates that 28 small plans (.000046% of small plans) file prohibited transaction exemption applications each year. The Department does not consider this to be a substantial number of small entities. Therefore, based on the foregoing, pursuant to section 605(b) of RFA, the Assistant Secretary of the Employee Benefits Security Administration hereby certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The Department invites comments on this certification and the potential impact of the rule on small entities.
The proposed rule being issued here will, when finalized, be subject to the provisions of the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4), the proposed rule does not include any federal mandate that may result in expenditures by State, local, or tribal governments, or impose an annual burden exceeding $100 million or more, adjusted for inflation, on the private sector.
Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies that have substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed rule does not have federalism implications, because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in the rule do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States.
Administrative practice and procedure, Employee benefit plans, Employee Retirement Income Security Act, Federal Employees' Retirement System Act, Exemptions, Fiduciaries, Party in interest, Pensions, Prohibited transactions, Trusts and trustees.
For the reasons set forth in the preamble, the Department proposes to amend subchapter G, part 2570 of chapter XXV of title 29 of the Code of Federal Regulations as follows:
1. The authority citation for part 2570 reads as follows:
5 U.S.C. 8477; 29 U.S.C. 1002(40), 1021, 1108, 1132, and 1135; sec. 102, Reorganization Plan No. 4 of 1978, 3 CFR 332 (1978),
2. Revise subpart B to part 2570 to read as follows:
(a) The rules of procedure set forth in this subpart apply to prohibited transaction exemptions issued by the Department under the authority of:
(1) Section 408(a) of the Employee Retirement Income Security Act of 1974 (ERISA);
(2) Section 4975(c)(2) of the Internal Revenue Code of 1986 (the Code);
(3) The Federal Employees' Retirement System Act of 1986 (FERSA) (5 U.S.C. 8477(c)(3)).
(b) Under these rules of procedure, the Department may conditionally or unconditionally exempt any fiduciary or transaction, or class of fiduciaries or transactions, from all or part of the restrictions imposed by section 406 of ERISA and the corresponding restrictions of the Code and FERSA. While administrative exemptions granted under these rules are ordinarily prospective in nature, an applicant may also obtain retroactive relief for past prohibited transactions if certain safeguards described in this subpart were in place at the time the transaction was consummated.
(c) These rules govern the filing and processing of applications for both individual and class exemptions that the Department may propose and grant pursuant to the authorities cited in paragraph (a) of this section. The Department may also propose and grant exemptions on its own motion, in which case the procedures relating to publication of notices, hearings, evaluation and public inspection of the administrative record, and modification or revocation of previously granted exemptions will apply.
(d) The issuance of an administrative exemption by the Department under these procedural rules does not relieve a fiduciary or other party in interest or disqualified person with respect to a plan from certain other provisions of ERISA, the Code, or FERSA, including any prohibited transaction provisions to which the exemption does not apply, and the general fiduciary responsibility provisions of ERISA which require, among other things, that a fiduciary discharge his or her duties respecting the plan solely in the interests of the participants and beneficiaries of the plan and in a prudent fashion; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries.
(e) The Department will not propose or issue exemptions upon oral request alone, nor will the Department grant exemptions orally. An applicant for an administrative exemption may request and receive oral advice from Department employees in preparing an exemption application. However, such advice does not constitute part of the administrative record and is not binding on the Department in its processing of an exemption application or in its examination or audit of a plan.
(f) The Department will generally treat any exemption application that is filed solely under section 408(a) of ERISA or solely under section 4975(c)(2) of the Code as an exemption request filed under both section 408(a) and section 4975(c)(2) if it relates to a transaction that would be prohibited both by ERISA and the corresponding provisions of the Code.
For purposes of these procedures, the following definitions apply:
(a) An
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person;
(2) Any director of, relative of, or partner in, any such person;
(3) Any corporation, partnership, trust, or unincorporated enterprise of which such person is an officer, director, or a 5 percent or more partner or owner; and
(4) Any employee or officer of the person who—
(i) Is highly compensated (as defined in section 4975(e)(2)(H) of the Code), or
(ii) Has direct or indirect authority, responsibility, or control regarding the custody, management, or disposition of plan assets.
(b) A
(c)
(d)
(e) An
(f) A
(g)
(h) A
(i) A
(j) A
(a) The Department will initiate exemption proceedings upon the application of:
(1) Any party in interest to a plan who is or may be a party to the exemption transaction;
(2) Any plan which is a party to the exemption transaction; or
(3) In the case of an application for an exemption covering a class of parties in interest or a class of transactions, in addition to any person described in paragraphs (a)(1) and (a)(2) of this section, an association or organization representing parties in interest who may be parties to the exemption transaction.
(b) An application by or for a person described in paragraph (a) of this section, may be submitted by the applicant or by an authorized representative. An application submitted by a representative of the applicant must include proof of authority in the form of:
(1) A power of attorney; or
(2) A written certification from the applicant that the representative is authorized to file the application.
(c) If the authorized representative of an applicant submits an application for an exemption to the Department together with proof of authority to file the application as required by paragraph (b) of this section, the Department will direct all correspondence and inquiries concerning the application to the representative unless requested to do otherwise by the applicant.
(a) The Department will not ordinarily consider:
(1) An application that fails to include all the information required by §§ 2570.34 and 2570.35 of this subpart or otherwise fails to conform to the requirements of these procedures; or
(2) An application involving a transaction or transactions which are the subject of an investigation for possible violations of part 1 or 4 of subtitle B of Title I of ERISA or section 8477 or 8478 of FERSA or an application involving a party in interest who is the subject of such an investigation or who is a defendant in an action by the Department or the Internal Revenue Service to enforce the above-mentioned provisions of ERISA or FERSA.
(b) An application for an individual exemption relating to a specific transaction or transactions ordinarily will not be considered if the Department has under consideration a class exemption relating to the same type of transaction or transactions. Notwithstanding the foregoing, the Department may consider an application for an individual exemption where there is a pending class exemption if the issuance of the final class exemption may not be imminent, and the applicant can demonstrate that time constraints necessitate consideration of the transaction on an individual basis.
(c) If for any reason the Department decides not to consider an exemption application, it will inform the applicant of that decision in writing and of the reasons therefore.
(a) All applications for exemptions must contain the following information:
(1) The name(s) of the applicant(s);
(2) A detailed description of the exemption transaction including identification of all the parties in interest involved, a description of any larger integrated transaction of which the exemption transaction is a part, and a chronology of the events leading up to the transaction;
(3) The identity of any representatives for the affected plan(s) and parties in interest and what individuals or entities they represent;
(4) The reasons a plan would have for entering into the exemption transaction;
(5) The prohibited transaction provisions from which exemptive relief is requested and the reason why the transaction would violate each such provision;
(6) Whether the exemption transaction is customary for the industry or class involved;
(7) Whether the exemption transaction is or has been the subject of an investigation or enforcement action by the Department or by the Internal Revenue Service; and
(8) The hardship or economic loss, if any, which would result to the person or persons on behalf of whom the exemption is sought, to affected plans, and to their participants and
(b) All applications for exemption must also contain the following:
(1) A statement explaining why the requested exemption would be—
(i) Administratively feasible;
(ii) In the interests of affected plans and their participants and beneficiaries; and
(iii) Protective of the rights of participants and beneficiaries of affected plans.
(2) With respect to the notification of interested persons required by § 2570.43:
(i) A description of the interested persons to whom the applicant intends to provide notice;
(ii) The manner in which the applicant will provide such notice; and
(iii) An estimate of the time the applicant will need to furnish notice to all interested persons following publication of a notice of the proposed exemption in the
(3) If an advisory opinion has been requested by any party to the exemption transaction from the Department with respect to any issue relating to the exemption transaction—
(i) A copy of the letter concluding the Department's action on the advisory opinion request; or
(ii) If the Department has not yet concluded its action on the request:
(A) A copy of the request or the date on which it was submitted together with the Department's correspondence control number as indicated in the acknowledgment letter; and
(B) An explanation of the effect of the issuance of an advisory opinion upon the exemption transaction.
(4) If the application is to be signed by anyone other than an individual party in interest seeking exemptive relief on his or her own behalf, a statement which—
(i) Identifies the individual signing the application and his or her position or title; and
(ii) Explains briefly the basis of his or her familiarity with the matters discussed in the application.
(5)(i) A declaration in the following form:
Under penalty of perjury, I declare that I am familiar with the matters discussed in this application and, to the best of my knowledge and belief, the representations made in this application are true and correct.
(ii) This declaration must be dated and signed by:
(A) The applicant, in its individual capacity, in the case of an individual party in interest seeking exemptive relief on his or her own behalf;
(B) A corporate officer or partner where the applicant is a corporation or partnership;
(C) A designated officer or official where the applicant is an association, organization or other unincorporated enterprise;
(D) The plan fiduciary that has the authority, responsibility, and control with respect to the exemption transaction where the applicant is a plan.
(c) Specialized statements, as applicable, from a qualified independent appraiser on behalf of the plan, such as appraisal reports or analyses of market conditions, submitted to support an application for exemption must be accompanied by a statement of consent from such appraiser acknowledging that the statement is being submitted to the Department as part of an application for exemption. Such statements must also contain the following written information:
(1) A copy of the qualified independent appraiser's engagement letter with the plan describing the specific duties the appraiser shall undertake;
(2) A summary of the qualified independent appraiser's qualifications to serve in such capacity;
(3) A detailed description of any relationship that the qualified independent appraiser has had or may have with any party in interest engaging in the transaction with the plan, or its affiliates, that may influence the appraiser;
(4) A written appraisal report prepared by the qualified independent appraiser, on behalf of the plan, which satisfies the following requirements:
(i) The report must describe the method(s) used in determining the fair market value of the subject asset(s) and an explanation of why such method best reflects the fair market value of the asset(s);
(ii) The report must take into account any special benefit that the party in interest or its affiliate(s) may derive from control of the asset(s), such as owning an adjacent parcel of real property or gaining voting control over a company; and
(iii) The report must be current and not more than one year old from the date of the transaction, and there must be a written update by the qualified independent appraiser affirming the accuracy of the appraisal as of the date of the transaction. If the appraisal report is a year old or more, a new appraisal shall be submitted to the Department by the applicant.
(5) If the subject of the appraisal report is real property, the qualified independent appraiser shall submit a written representation that he or she is a member of a professional organization of appraisers that can sanction its members for acts of malfeasance;
(6) If the subject of the appraisal report is an asset other than real property, the qualified independent appraiser shall submit a written representation describing the appraiser's prior experience in valuing assets of the same type; and
(7) The qualified independent appraiser shall submit a written representation disclosing the percentage of its current income that was derived from any party in interest involved in the transaction or its affiliates; in general, such percentage shall be computed by comparing, in fractional form:
(i) The amount of the appraiser's projected personal or business income from the current federal income tax year (including amounts received from preparing the appraisal report) that will be derived from the party in interest or its affiliates (expressed as a numerator); and
(ii) The appraiser's gross personal or business income for the prior federal income tax year (expressed as a denominator).
(d) For those exemption transactions requiring the retention of a qualified independent fiduciary to represent the interests of the plan, a statement must be submitted by such fiduciary that contains the following written information:
(1) A signed and dated declaration under penalty of perjury that, to the best of the qualified independent fiduciary's knowledge and belief, all of the representations made in such statement are true and correct;
(2) A copy of the qualified independent fiduciary's engagement letter with the plan describing the fiduciary's specific duties;
(3) An explanation for the conclusion that the fiduciary is a qualified independent fiduciary, which also must include a summary of that person's qualifications to serve in such capacity, as well as a description of any prior experience by that person in acting as a qualified independent fiduciary with respect to a plan;
(4) A detailed description of any relationship that the qualified independent fiduciary has had or may have with the party in interest engaging in the transaction with the plan or its affiliates;
(5) An acknowledgement by the qualified independent fiduciary that it
(6) The qualified independent fiduciary's opinion on whether the proposed transaction would be in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of such plan, along with a statement of the reasons on which the opinion is based;
(7) Where the proposed transaction is continuing in nature, a declaration by the qualified independent fiduciary that it is authorized to take all appropriate actions to safeguard the interests of the plan, and shall, during the pendency of the transaction:
(i) Monitor the transaction on behalf of the plan on a continuing basis;
(ii) Ensure that the transaction remains in the interests of the plan and, if not, take any appropriate actions available under the particular circumstances; and
(iii) Enforce compliance with all conditions and obligations imposed on any party dealing with the plan with respect to the transaction; and
(8) The qualified independent fiduciary shall submit a written representation disclosing the percentage of such fiduciary's current income that was derived from any party in interest involved in the transaction or its affiliates; in general, such percentage shall be computed by comparing, in fractional form:
(i) The amount of the fiduciary's projected personal or business income from the current federal income tax year that will be derived from the party in interest or its affiliates (expressed as a numerator); and
(ii) The fiduciary's gross personal or business income (excluding fixed, non-discretionary retirement income) for the prior federal income tax year (expressed as a denominator).
(e) Specialized statements, as applicable, from other third-party experts, including but not limited to economists or market specialists, submitted on behalf of the plan to support an application for exemption must be accompanied by a statement of consent from such expert acknowledging that the statement is being submitted to the Department as part of an application for exemption. Such statements must also contain the following written information:
(1) A copy of the expert's engagement letter with the plan describing the specific duties the expert will undertake;
(2) A summary of the expert's qualifications to serve in such capacity; and
(3) A detailed description of any relationship that the expert has had or may have with any party in interest engaging in the transaction with the plan, or its affiliates, that may influence the actions of the expert.
(f) An application for exemption may also include a draft of the requested exemption which describes the transaction and parties in interest for which exemptive relief is sought and the specific conditions under which the exemption would apply.
(a) Except as provided in paragraph (c) of this section, every application for an individual exemption must include, in addition to the information specified in § 2570.34 of this subpart, the following information:
(1) The name, address, telephone number, and type of plan or plans to which the requested exemption applies;
(2) The Employer Identification Number (EIN) and the plan number (PN) used by such plan or plans in all reporting and disclosure required by the Department;
(3) Whether any plan or trust affected by the requested exemption has ever been found by the Department, the Internal Revenue Service, or by a court to have violated the exclusive benefit rule of section 401(a) of the Code, section 4975(c)(1) of the Code, section 406 or 407(a) of ERISA, or 5 U.S.C. 8477(c)(3), including a description of the circumstances surrounding such violation;
(4) Whether any relief under section 408(a) of ERISA, section 4975(c)(2) of the Code, or 5 U.S.C. 8477(c)(3) has been requested by, or provided to, the applicant or any of the parties on behalf of whom the exemption is sought and, if so, the exemption application number or the prohibited transaction exemption number;
(5) Whether the applicant or any of the parties in interest involved in the exemption transaction is currently, or has been within the last five years, a defendant in any lawsuit or criminal action concerning such person's conduct as a fiduciary or party in interest with respect to any plan (other than a lawsuit with respect to a routine claim for benefits), and a description of the circumstances of such lawsuit or criminal action;
(6) Whether the applicant (including any person described in § 2570.34(b)(5)(ii)) or any of the parties in interest involved in the exemption transaction has, within the last 13 years, been either convicted or released from imprisonment, whichever is later, as a result of: any felony involving abuse or misuse of such person's position or employment with an employee benefit plan or a labor organization; any felony arising out of the conduct of the business of a broker, dealer, investment adviser, bank, insurance company or fiduciary; income tax evasion; any felony involving the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds or securities; conspiracy or attempt to commit any such crimes or a crime of which any of the foregoing crimes is an element; or any other crime described in section 411 of ERISA, and a description of the circumstances of any such conviction. For purposes of this section, a person shall be deemed to have been “convicted” from the date of the judgment of the trial court, regardless of whether that judgment remains under appeal;
(7) Whether, within the last five years, any plan affected by the exemption transaction or any party in interest involved in the exemption transaction has been under investigation or examination by, or has been engaged in litigation or a continuing controversy with, the Department, the Internal Revenue Service, the Justice Department, the Pension Benefit Guaranty Corporation, or the Federal Retirement Thrift Investment Board involving compliance with provisions of ERISA, provisions of the Code relating to employee benefit plans, or provisions of FERSA relating to the Federal Thrift Savings Fund. If so, the applicant must provide a brief statement describing the investigation, examination, litigation or controversy. The Department reserves the right to require the production of additional information or documentation concerning any of the above matters. In this regard, a denial of the exemption application will result from a failure to provide additional information requested by the Department.
(8) Whether any plan affected by the requested exemption has experienced a reportable event under section 4043 of ERISA, and, if so, a description of the circumstances of any such reportable event;
(9) Whether a notice of intent to terminate has been filed under section 4041 of ERISA respecting any plan affected by the requested exemption, and, if so, a description of the circumstances for the issuance of such notice;
(10) Names, addresses, and taxpayer identifying numbers of all parties in interest involved in the subject transaction;
(11) The estimated number of participants and beneficiaries in each plan affected by the requested exemption as of the date of the application;
(12) The percentage of the fair market value of the total assets of each affected plan that is involved in the exemption transaction;
(13) Whether the exemption transaction has been consummated or will be consummated only if the exemption is granted;
(14) If the exemption transaction has already been consummated:
(i) The circumstances which resulted in plan fiduciaries causing the plan(s) to engage in the transaction before obtaining an exemption from the Department;
(ii) Whether the transaction has been terminated;
(iii) Whether the transaction has been corrected as defined in Code section 4975(f)(5);
(iv) Whether Form 5330, Return of Excise Taxes Related to Employee Benefit Plans, has been filed with the Internal Revenue Service with respect to the transaction; and
(v) Whether any excise taxes due under section 4975(a) and (b) of the Code, or any civil penalties due under section 502(i) or (l) of ERISA by reason of the transaction have been paid. If so, the applicant should submit documentation (
(15) The name of every person who has investment discretion over any plan assets involved in the exemption transaction and the relationship of each such person to the parties in interest involved in the exemption transaction and the affiliates of such parties in interest;
(16) Whether or not the assets of the affected plan(s) have been invested, directly or indirectly, in any other exempt or non-exempt transactions with the party in interest involved in the exemption transaction (including, but not limited to, plan investments in loans or leases involving the party in interest, securities lending with the party in interest, extensions of credit with the party in interest, or plan investment in securities issued by the party in interest), and, if such investments exist, a statement which indicates:
(i) The type of investment to which the statement pertains;
(ii) The aggregate fair market value of all investments of this type as reflected in the plan's most recent annual report;
(iii) The approximate percentage of the fair market value of the plan's total assets as shown in such annual report that is represented by all investments of this type; and
(iv) The statutory or administrative exemption covering these investments, if any;
(17) The approximate aggregate fair market value of the total assets of each affected plan;
(18) The person(s) who will bear the costs of the exemption application and of notifying interested persons; and
(19) Whether an independent fiduciary is or will be involved in the exemption transaction and, if so, the names of the persons who will bear the cost of the fee payable to such fiduciary.
(b) Each application for an individual exemption must also include:
(1) True copies of all contracts, deeds, agreements, and instruments, as well as relevant portions of plan documents, trust agreements, and any other documents bearing on the exemption transaction;
(2) A discussion of the facts relevant to the exemption transaction that are reflected in these documents and an analysis of their bearing on the requested exemption;
(3) A copy of the most recent financial statements of each plan affected by the requested exemption; and
(4) A net worth statement with respect to any party in interest that is providing a personal guarantee with respect to the exemption transaction.
(c) Special rule for applications for individual exemption involving pooled funds:
(1) The information required by paragraphs (a)(8) through (12) of this section is not required to be furnished in an application for individual exemption involving one or more pooled funds;
(2) The information required by paragraphs (a)(1) through (7) and (a)(13) through (19) of this section and by paragraphs (b)(1) through (3) of this section must be furnished in reference to the pooled fund, rather than to the plans participating therein. (For purposes of this paragraph, the information required by paragraph (a)(16) of this section relates solely to other investment transactions between the pooled fund or funds and any parties in interest involved in the exemption transaction.);
(3) The following information must also be furnished—
(i) The estimated number of plans that are participating (or will participate) in the pooled fund; and
(ii) The minimum and maximum limits imposed by the pooled fund (if any) on the portion of the total assets of each plan that may be invested in the pooled fund.
(4) Additional requirements for applications for individual exemption involving pooled funds in which certain plans participate.
(i) This paragraph applies to any application for an individual exemption involving one or more pooled funds in which any plan participating therein—
(A) Invests an amount which exceeds 20% of the total assets of the pooled fund, or
(B) Covers employees of:
(
(
(ii) The exemption application must include, with respect to each plan described in paragraph (c)(4)(i) of this section, the information required by paragraphs (a)(1) through (3), (a)(5) through (7), (a)(10), (a)(12) through (16), and (a)(18) and (19), of this section. The information required by this paragraph must be furnished in reference to the plan's investment in the pooled fund (e.g., the names, addresses and taxpayer identifying numbers of all fiduciaries responsible for the plan's investment in the pooled fund [§ 2570.35(a) (10)], the percentage of the assets of the plan invested in the pooled fund [§ 2570.35(a)(12)], whether the plan's investment in the pooled fund has been consummated or will be consummated only if the exemption is granted [§ 2570.35(a)(13)], etc.).
(iii) The information required by paragraph (c)(4) of this section is in addition to the information required by paragraphs (c)(2) and (3) of this section relating to information furnished by reference to the pooled fund.
(5) The special rule and the additional requirements described in paragraphs (c)(1) through (4) of this section do not apply to an individual exemption request solely for the investment by a plan in a pooled fund. Such an application must provide the information required by paragraphs (a) and (b) of this section.
(d) Retroactive exemptions:
(1) Generally, the Department will favorably consider requests for retroactive relief, in all exemption applications, where the safeguards necessary for the grant of a prospective exemption were in place at the time at
(2) Among the factors that the Department would take into account in making a finding that an applicant acted in good faith include the following:
(i) The participation of an independent fiduciary acting on behalf of the plan who is qualified to negotiate, approve and monitor the transaction;
(ii) The existence of a contemporaneous appraisal by a qualified independent appraiser or reference to an objective third party source, such as a stock or bond index;
(iii) The existence of a bidding process or evidence of comparable fair market transactions with unrelated third parties;
(iv) That the applicant has submitted an accurate and complete application for exemption containing documentation of all necessary and relevant facts and representations upon which the applicant relied. In this regard, additional weight will be given to facts and representations which are prepared and certified by a source independent of the applicant;
(v) That the applicant has submitted evidence that the plan fiduciary did not engage in an act or transaction knowing that such act or transaction was prohibited under section 406 of ERISA and/or section 4975 of the Code. In this regard, the Department will accord appropriate weight to the submission of a contemporaneous, reasoned legal opinion of counsel, upon which the plan fiduciary relied in good faith before entering the act or transaction;
(vi) That the applicant has submitted a statement of the circumstances which prompted the submission of the application for exemption and the steps taken by the applicant with regard to the transaction upon discovery of the violation;
(vii) That the applicant has submitted a statement prepared and certified by an independent person familiar with the types of transactions for which relief is requested demonstrating that the terms and conditions of the transaction (including, in the case of an investment, the return in fact realized by the plan) were at least as favorable as that obtainable in a similar transaction with an unrelated party; and
(viii) Such other undertakings and assurances with respect to the plan and its participants that may be offered by the applicant which are relevant to the criteria under section 408(a) of ERISA and section 4975(c)(2) of the Code.
(3) The Department, as a general matter, will not favorably consider requests for retroactive exemptions where transactions or conduct with respect to which an exemption is requested resulted in a loss to the plan. In addition, the Department will not favorably consider requests for exemptions where the transactions are inconsistent with the general fiduciary responsibility provisions of sections 403 or 404 of ERISA or the exclusive benefit requirements of section 401(a) of the Code.
The Department's prohibited transaction exemption program is administered by the Employee Benefits Security Administration (EBSA). Any exemption application governed by these procedures may be mailed via first-class mail to: Employee Benefits Security Administration, Office of Exemption Determinations, U.S. Department of Labor, Room N–5700, 200 Constitution Avenue, NW., Washington, DC 20210. Alternatively, applications may be e-mailed to the Department at:
(a) While an exemption application is pending final action with the Department, an applicant must promptly notify the Department in writing if he or she discovers that any material fact or representation contained in the application or in any documents or testimony provided in support of the application is inaccurate, if any such fact or representation changes during this period, or if, during the pendency of the application, anything occurs that may affect the continuing accuracy of any such fact or representation. In addition, an applicant must promptly notify the Department in writing if it learns that a material fact or representation has been omitted from the exemption application.
(b) If, at any time during the pendency of an exemption application, the applicant or any other party in interest who would participate in the exemption transaction becomes the subject of an investigation or enforcement action by the Department, the Internal Revenue Service, the Justice Department, the Pension Benefit Guaranty Corporation, or the Federal Retirement Thrift Investment Board involving compliance with provisions of ERISA, provisions of the Code relating to employee benefit plans, or provisions of FERSA relating to the Federal Thrift Savings Fund, the applicant must promptly notify the Department.
(c) The Department may require an applicant to provide documentation it considers necessary to verify any statements contained in the application or in supporting materials or documents.
(d) The determination as to whether, under the totality of the facts and circumstances, a particular statement contained in (or omitted from) an exemption application constitutes a material fact or representation shall be made by the Department. To the extent that a material representation is omitted, becomes inaccurate, or changes, the prohibited transaction exemptive relief will no longer be available starting on the earliest date of these events.
(a) If, after reviewing an exemption file, the Department tentatively concludes that it will not propose or grant the exemption, it will notify the applicant in writing. At the same time, the Department will provide a brief statement of the reasons for its tentative denial.
(b) An applicant will have 20 days from the date of a tentative denial letter to request a conference under § 2570.40 of this subpart and/or to notify the Department of its intent to submit additional information under § 2570.39 of this subpart. If the Department does not receive a request for a conference or a notification of intent to submit additional information within that time, it will issue a final denial letter pursuant to § 2570.41.
(c) The Department need not issue a tentative denial letter to an applicant before issuing a final denial letter where the Department has conducted a hearing on the exemption pursuant to either § 2570.46 or § 2570.47.
(a) An applicant may notify the Department of its intent to submit additional information supporting an exemption application either by telephone or by letter sent to the address furnished in the applicant's tentative denial letter, or electronically via the e-mail address provided in the tentative
(b) An applicant will have 40 days from the date of the tentative denial letter described in § 2570.38(a) to submit in writing all of the additional information he or she intends to provide in support of the application. All such information must be accompanied by a declaration under penalty of perjury attesting to the truth and correctness of the information provided, which is dated and signed by a person qualified under § 2570.34(b)(5) of this subpart to sign such a declaration.
(c) If, for reasons beyond its control, an applicant is unable to submit all the additional information he or she intends to provide in support of his application within the 40-day period described in paragraph (b) of this section, he or she may request an extension of time to furnish the information. Such requests must be made before the expiration of the 40-day period and will be granted only in unusual circumstances and for a limited period of time as determined, respectively, by the Department in its sole discretion.
(d) If an applicant is unable to submit all of the additional information he or she intends to provide in support of his exemption application within the 40-day period specified in paragraph (b) of this section, or within any additional period of time granted pursuant to paragraph (c) of this section, the applicant may withdraw the exemption application before expiration of the applicable time period and reinstate it later pursuant to § 2570.44.
(e) The Department will issue, without further notice, a final denial letter denying the requested exemption pursuant to § 2570.41 where—
(1) The Department has not received all the additional information that the applicant was required to submit within the 40-day period described in paragraph (b) of this section, or within any additional period of time granted pursuant to paragraph (c) of this section;
(2) The applicant did not request a conference pursuant to § 2570.38(b) of this subpart; and
(3) The applicant has not withdrawn the application as permitted by paragraph (d) of this section.
(a) Any conference between the Department and an applicant pertaining to a requested exemption will be held in Washington, DC, except that a telephone conference will be held at the applicant's request.
(b) An applicant is entitled to only one conference with respect to any exemption application. An applicant will not be entitled to a conference, however, where the Department has held a hearing on the exemption under either § 2570.46 or § 2570.47 of this subpart.
(c) Insofar as possible, conferences will be scheduled as joint conferences with all applicants present where:
(1) More than one applicant has requested an exemption with respect to the same or similar types of transactions;
(2) The Department is considering the applications together as a request for a class exemption;
(3) The Department contemplates not granting the exemption; and
(4) More than one applicant has requested a conference.
(d) In instances where the applicant has requested a conference pursuant to § 2570.38(b) and also has submitted additional information pursuant to § 2570.39, the Department will schedule a conference under this section for a date and time that occurs within 20 days after the date on which the Department has provided either oral or written notification to the applicant that, after reviewing the additional information provided by the applicant pursuant to § 2570.39, it is still not prepared to propose the requested exemption. If, for reasons beyond its control, the applicant cannot attend a conference within the 20-day limit described in this paragraph, the applicant may request an extension of time for the scheduling of a conference, provided that such request is made before the expiration of the 20-day limit. The Department will only grant such an extension in unusual circumstances and for a brief period of time as determined, respectively, by the Department in its sole discretion.
(e) In instances where the applicant has requested a conference pursuant to § 2570.38(b) of this subpart but has not submitted additional information pursuant to § 2570.39, the Department will schedule a conference under this section for a date and time that occurs within 40 days after the date of the issuance of the tentative denial letter described in § 2570.38(a). If, for reasons beyond its control, the applicant cannot attend a conference within the 40-day limit described in this paragraph, the applicant may request an extension of time for the scheduling of a conference, provided that such request is made before the expiration of the 40-day limit. The Department will only grant such an extension in unusual circumstances and for a brief period of time as determined, respectively, by the Department in its sole discretion.
(f) If the applicant fails to either timely schedule or appear for a conference agreed to by the Department pursuant to paragraphs (d) or (e) of this section, the applicant will be deemed to have waived its right to a conference.
(g) Within 20 days after the date of any conference held under this section, the applicant may submit to the Department (electronically or in paper form) any additional data, arguments, or precedents discussed at the conference but not previously or adequately presented in writing. If, for reasons beyond its control, the applicant is unable to submit the additional information within this 20-day limit, the applicant may request an extension of time to furnish the information, provided that such request is made before the expiration of the 20-day limit described in this paragraph. The Department will only grant such an extension in unusual circumstances and for a brief period of time as determined, respectively, by the Department in its sole discretion.
The Department will issue a final denial letter denying a requested exemption where:
(a) The conditions for issuing a final denial letter specified in § 2570.38(b) or § 2570.39(e) of this subpart are satisfied;
(b) After issuing a tentative denial letter under § 2570.38 of this subpart and considering the entire record in the case, including all written information submitted pursuant to § 2570.39 and § 2570.40(e) of this subpart, the Department decides not to propose an exemption or to withdraw an exemption already proposed; or
(c) After proposing an exemption and conducting a hearing on the exemption under either § 2570.46 or § 2570.47 of this subpart and after considering the entire record in the case, including the record of the hearing, the Department decides to withdraw the proposed exemption.
If the Department tentatively decides that an administrative exemption is warranted, it will publish a notice of a proposed exemption in the
(a) Explain the exemption transaction and summarize the information and reasons in support of proposing the exemption;
(b) Describe the scope of relief and any conditions of the proposed exemption;
(c) Inform interested persons of their right to submit comments to the Department (either electronically or in writing) relating to the proposed exemption and establish a deadline for receipt of such comments; and
(d) Where the proposed exemption includes relief from the prohibitions of section 406(b) of ERISA, section 4975(c)(1)(E) or (F) of the Code, or section 8477(c)(2) of FERSA, inform interested persons of their right to request a hearing under § 2570.46 of this subpart and establish a deadline for receipt of requests for such hearings.
(a) If a notice of proposed exemption is published in the
(1) A copy of the notice of proposed exemption as published in the
(2) A supplemental statement in the following form:
You are hereby notified that the United States Department of Labor is considering granting an exemption from the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, or the Federal Employees' Retirement System Act of 1986. The exemption under consideration is summarized in the enclosed [Summary of Proposed Exemption, and described in greater detail in the accompanying]
All comments and/or requests for a hearing should be addressed to the Office of Exemption Determinations, Employee Benefits Security
The Department will make no final decision on the proposed exemption until it reviews all comments received in response to the enclosed notice. If the Department decides to hold a hearing on the exemption request before making its final decision, you will be notified of the time and place of the hearing.
(b) The method used by an applicant to furnish notice to interested persons must be reasonably calculated to ensure that interested persons actually receive the notice. In all cases, personal delivery and delivery by first-class mail will be considered reasonable methods of furnishing notice. If the applicant elects to furnish notice electronically, he or she must provide satisfactory proof of electronic delivery to the entire class of interested persons.
(c) After furnishing the notification described in paragraph (a) of this section, an applicant must provide the Department with a written statement confirming that notice was furnished in accordance with the foregoing requirements of this section. This statement must be accompanied by a declaration under penalty of perjury attesting to the truth of the information provided in the statement and signed by a person qualified under § 2570.34(b)(5) of this subpart to sign such a declaration. No exemption will be granted until such a statement and its accompanying declaration have been furnished to the Department.
(d) In addition to the provision of notification required by paragraph (a) of this section, the Department, in its discretion, may also require an applicant to furnish interested persons with a brief summary of the proposed exemption (Summary of Proposed Exemption), written in a manner calculated to be understood by the average recipient, which objectively describes:
(1) The exemption transaction and the parties in interest thereto;
(2) Why such transaction would violate the prohibited transaction provisions of ERISA, the Code, and/or FERSA from which relief is sought;
(3) The reasons why the plan seeks to engage in the transaction; and
(4) The conditions and safeguards proposed to protect the plan and its participants and beneficiaries from potential abuse or unnecessary risk of loss in the event the Department grants the exemption.
(e) Applicants who are required to provide interested persons with the Summary of Proposed Exemption described in paragraph (d) of this section shall furnish the Department with a copy of such summary for review and approval prior to its distribution to interested persons. Such applicants shall also provide confirmation to the Department that the Summary of Proposed Exemption was furnished to interested persons as part of the written statement and declaration required of exemption applicants by paragraph (c) of this section.
(a) An applicant may withdraw an application for an exemption at any time by oral or written (including electronic) notice to the Department. A withdrawn application generally shall not prejudice any subsequent applications for an exemption submitted by an applicant.
(b) Upon receiving an applicant's notice of withdrawal regarding an application for an individual exemption, the Department will confirm by letter the applicant's withdrawal of the application and will terminate all proceedings relating to the application. If a notice of proposed exemption has been published in the
(c) Upon receiving an applicant's notice of withdrawal regarding an application for a class exemption or for an individual exemption that is being considered with other applications as a request for a class exemption, the Department will inform any other applicants for the exemption of the withdrawal. The Department will continue to process other applications for the same exemption. If all applicants for a particular class exemption
(d) If, following the withdrawal of an exemption application, an applicant decides to reapply for the same exemption, he or she may contact the Department in writing (including electronically) to request that the application be reinstated. The applicant should refer to the application number assigned to the original application. If, at the time the original application was withdrawn, any additional information to be submitted to the Department under § 2570.39 was outstanding, that information must accompany the request for reinstatement of the application. However, the applicant need not resubmit information previously furnished to the Department in connection with a withdrawn application unless reinstatement of the application is requested more than two years after the date of its withdrawal.
(e) Any request for reinstatement of a withdrawn application submitted, in accordance with paragraph (d) of this section, will be granted by the Department, and the Department will take whatever steps remained at the time the application was withdrawn to process the application.
(a) The Department will entertain one request for reconsideration of an exemption application that has been finally denied pursuant to § 2570.41 if the applicant presents in support of the application significant new facts or arguments, which, for good reason, could not have been submitted for the Department's consideration during its initial review of the exemption application.
(b) A request for reconsideration of a previously denied application must be made within 180 days after the issuance of the final denial letter and must be accompanied by a copy of the Department's final letter denying the exemption and a statement setting forth the new information and/or arguments that provide the basis for reconsideration.
(c) A request for reconsideration must also be accompanied by a declaration under penalty of perjury attesting to the truth of the new information provided, which is signed by a person qualified under § 2570.34(b)(5) to sign such a declaration.
(d) If, after reviewing a request for reconsideration, the Department decides that the facts and arguments presented do not warrant reversal of its original decision to deny the exemption, it will send a letter to the applicant reaffirming that decision.
(e) If, after reviewing a request for reconsideration, the Department decides, based on the new facts and arguments submitted, to reconsider its final denial letter, it will notify the applicant of its intent to reconsider the application in light of the new information presented. The Department will then take whatever steps remained at the time it issued its final denial letter to process the exemption application.
(f) If, at any point during its subsequent processing of the application, the Department decides again that the exemption is unwarranted, it will issue a letter affirming its final denial.
(a) Any interested person who may be adversely affected by an exemption which the Department proposes to grant from the restrictions of section 406(b) of ERISA, section 4975(c)(1)(E) or (F) of the Code, or section 8477(c)(2) of FERSA may request a hearing before the Department within the period of time specified in the
(1) The name, address, telephone number, and e-mail address of the person making the request;
(2) The nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption; and
(3) A statement of the issues to be addressed and a general description of the evidence to be presented at the hearing.
(b) The Department will grant a request for a hearing made in accordance with paragraph (a) of this section where a hearing is necessary to fully explore material factual issues identified by the person requesting the hearing. A notice of such hearing shall be published by the Department in the
(1) The request for the hearing does not meet the requirements of paragraph (a) of this section;
(2) The only issues identified for exploration at the hearing are matters of law; or
(3) The factual issues identified can be fully explored through the submission of evidence in written (including electronic) form.
(c) An applicant for an exemption must notify interested persons in the event that the Department schedules a hearing on the exemption. Such notification must be given in the form, time, and manner prescribed by the Department. Ordinarily, however, adequate notification can be given by providing to interested persons a copy of the notice of hearing published by the Department in the
(d) After furnishing the notice required by paragraph (c) of this section, an applicant must submit a statement confirming that notice was given in the form, manner, and time prescribed. This statement must be accompanied by a declaration under penalty of perjury attesting to the truth of the information provided in the statement, which is signed by a person qualified under § 2570.34(b)(5) to sign such a declaration.
(a) In its discretion, the Department may schedule a hearing on its own motion where it determines that issues relevant to the exemption can be most fully or expeditiously explored at a hearing. A notice of such hearing shall be published by the Department in the
(b) An applicant for an exemption must notify interested persons of any hearing on an exemption scheduled by the Department in the manner described in § 2570.46(c). In addition, the applicant must submit a statement subscribed as true under penalty of perjury like that required in § 2570.46(d).
(a) The Department may not grant an exemption under section 408(a) of ERISA, section 4975(c)(2) of the Code, or 5 U.S.C. 8477(c)(3) unless, following evaluation of the facts and representations comprising the administrative record of the proposed exemption (including any comments received in response to a notice of proposed exemption and the record of any hearing held in connection with the proposed exemption), it finds that the exemption is:
(1) Administratively feasible;
(2) In the interests of the plan (or the Thrift Savings Fund in the case of FERSA) and of its participants and beneficiaries; and
(3) Protective of the rights of participants and beneficiaries of such plan (or the Thrift Savings Fund in the case of FERSA).
(b) In each instance where the Department determines to grant an exemption, it shall publish a notice in
(a) An exemption does not take effect or protect parties in interest from liability with respect to the exemption transaction unless the material facts and representations contained in the application and in any materials and documents submitted in support of the application were true and complete.
(b) An exemption is effective only for the period of time specified and only under the conditions set forth in the exemption.
(c) Only the specific parties to whom an exemption grants relief may rely on the exemption. If the notice granting an exemption does not limit exemptive relief to specific parties, all parties to the exemption transaction may rely on the exemption.
(d) For transactions that are continuing in nature, an exemption does not protect parties in interest from liability with respect to an exemption transaction if, during the continuation of the transaction, there are material changes to the original facts and representations underlying such exemption or if one or more of the exemption's conditions cease to be met.
(a) If, after an exemption takes effect, changes in circumstances, including changes in law or policy, occur which call into question the continuing validity of the Department's original findings concerning the exemption, the Department may take steps to revoke or modify the exemption.
(b) Before revoking or modifying an exemption, the Department will publish a notice of its proposed action in the
(c) Ordinarily the revocation or modification of an exemption will have prospective effect only.
(a) The administrative record of each exemption will be open to public inspection and copying at the EBSA Public Disclosure Room, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
(b) Upon request, the staff of the Public Disclosure Room will furnish photocopies of an administrative record, or any specified portion of that record, for a specified charge per page.
This subpart is effective with respect to all exemptions filed with or initiated by the Department under section 408(a) of ERISA, section 4975(c)(2) of the Code, and/or 5 U.S.C. 8477(c)(3) at any time after [DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Applications for exemptions under section 408(a) of ERISA, section 4975(c)(2) of the Code, and/or 5 U.S.C. 8477(c)(3) filed on or after September 10, 1990 but before [DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] are governed by part 2570 of chapter XXV of title 29 of the Code of Federal Regulations (title 29 CFR part 2570 as revised July 1, 1991).