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Federal Labor Relations Authority (FLRA).
Final rule.
The Federal Labor Relations Authority (FLRA), with the concurrence of the Office of Government Ethics (OGE), is adopting as final, without change, the interim FLRA rule that supplements the executive-branch-wide Standards of Ethical Conduct (Standards) issued by OGE and, with certain exceptions, requires FLRA employees to obtain approval before engaging in outside employment.
This final rule is effective March 18, 2011.
Rosa M. Koppel, Solicitor, at
The FLRA published, with OGE concurrence, an interim rule in 75 FR 79261, on December 20, 2010, governing the conduct of FLRA employees and requested comments. No comments were received. The FLRA has determined, with OGE concurrence, to adopt the interim rule as final without change. The interim rule being adopted as final provides that an FLRA employee, other than a special Government employee, must obtain approval before engaging in outside employment. The rule defines outside employment and sets out the procedure for seeking approval. The rule also provides that the Designated Agency Ethics Official (DAEO) or alternate DAEO may exempt certain categories of employment from the prior approval requirement.
For a detailed section analysis of this final rule, see the preamble of the interim rule as published in 75 FR 79261.
The FLRA has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. chapter 6, that this rulemaking will not have a significant economic impact on a substantial number of small entities because it primarily affects FLRA employees.
The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply because this rulemaking does not contain information collection requirements subject to the approval of the Office of Management and Budget.
The FLRA has determined that this rule is not a rule as defined in 5 U.S.C. 804, and thus, does not require review by Congress.
Conflict of interest, Government employees.
Accordingly, the Federal Labor Relations Authority, with the concurrence of the Office of Government Ethics, is adopting the interim rule adding 5 CFR chapter XLIX, consisting of part 5901, which was published at 75 FR 79261 on December 20, 2010, as a final rule without change.
Agricultural Marketing Service, USDA.
Final rule.
This document implements amendments to the Dairy Promotion and Research Order (Order). This action is pursuant to the Farm Security and Rural Investment Act of 2002 (2002 Farm Bill) and the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill). The 2002 Farm Bill mandates that the Order be amended to implement an assessment on imported dairy products to fund promotion and research and to add importer representation, initially two members, to the National Dairy Promotion and Research Board (Board). The 2008 Farm Bill specifies a mandatory assessment rate of 7.5 cents per hundredweight of milk, or equivalent thereof, on dairy products imported into the United States. This final rule, in accordance with the 2008 Farm Bill, also amends the term “United States” in the Dairy Production Stabilization Act of 1983 (Act) to mean all States, the District of Columbia, and the Commonwealth of Puerto Rico. Producers in these areas will be assessed 15 cents per hundredweight for all milk produced and marketed.
Whitney Rick, USDA, AMS, Dairy Programs, Promotion and Research Branch, Stop 0233-Room 2958-S, 1400 Independence Avenue, SW., Washington, DC 20250-0233, (202) 720-6909,
This final rule is being issued pursuant to the Dairy Production Stabilization Act of 1983 (7 U.S.C. 4501-4514), Public Law 98-180, enacted November 29, 1983, as amended May 13, 2002, by Public Law
This rule has been determined to be significant pursuant to Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget. The updated cost-benefit analysis for this final rule is available at
A requirement of 7 U.S.C. 4514 and 6407 requires the U.S. Department of Agriculture to conduct an independent analysis of the dairy checkoff programs. The independent analysis, conducted by Cornell University, has consistently shown that the program has had a positive and statistically significant impact on per capita dairy consumption. Specifically, generic advertising and promotion of dairy products increases both the quantities consumed and prices. For 2008, it was estimated the farm milk price was $0.21 to $0.26 per hundredweight higher and the quantity demanded was 2.3 percent higher because of the program. Results from this analysis show that the average Benefit-Cost Ratios for the Dairy Program was 5.49 (nonfat solids basis) and 7.07 (milk fat basis) from 1998 through 2008. This means that each dollar invested in generic dairy marketing by dairy farmers during the period would return between $5.49 and $7.07, on average, in net revenue to farmers. Additionally, the Report to Congress estimates the elasticity of advertising to be .034 on a nonfat basis and 0.027 on a fat basis. For further details, see
Assessments to U.S. dairy producers under the Order are relatively small compared to producer revenue. If dairy producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico had paid assessments of $0.15 per hundredweight of milk marketed in 2008, it is estimated that $1.1 million would have been paid. This is about 0.5 percent of the $195 million total value of milk produced and marketed in these areas.
The total of assessments collected from importers under the National Dairy Promotion and Research Program are expected to be relatively small compared to the value of dairy imports. If importers had been assessed $0.075 per hundredweight, or equivalent thereof, for imported dairy products in 2008 as specified in this rule, it is estimated that about $4.9 million would have been paid. This is about 0.2 percent of the $2.6 billion value of the dairy products imported in 2008.
Examination of import volumes for 2008 indicates that tariff rate quotas (TRQs) constrain dairy imports in varying degrees. TRQs do not seem to be a significant hindrance to the volume imported for many dairy products. Significant quantities of dairy products imported are not subject to TRQs.
The U.S. Dairy Export Council, a subsidiary of the Board, directs a global ingredients program and promotes dairy ingredients domestically and U.S. dairy ingredients internationally. Through importer representation on the Board and possible establishment of qualified dairy product promotion, research, or nutrition education programs (qualified programs) by importers, imported products could be promoted to a greater extent than under the current program.
The potential civil rights implications of this rule on affected parties have been considered to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons that are employees of the entities that are subject to these regulations. This final rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Moreover, the amendments would not exclude from participation any persons or groups, deny any persons or groups the benefits of the program, or subject any persons or groups to discrimination.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have a retroactive effect. Section 4512(a) of the Act provides that nothing in the National Dairy Promotion and Research Program (National Program) may be construed to preempt or supersede any other program relating to dairy product promotion organized and operated under the laws of the United States or any State.
The Dairy Production Stabilization Act of 1983 (Act) authorizes the National Program. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 4509 of the Act, any person subject to the Order may file with the Secretary a petition stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order is not in accordance with the law and requesting a modification of the Order or to be exempted from the Order. A person subject to an Order is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
This final rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. USDA has determined that this final rule conforms with the Federalism principles set forth in the Executive Order, and that this final rule does not have Federalism implications.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this final rule will not have a significant economic impact on a substantial number of small entities. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.
The Dairy Production Stabilization Act of 1983 authorizes a national program for dairy product promotion, research and nutrition education. Congress found that it is in the public interest to authorize the establishment of an orderly procedure for financing (through assessments on all milk produced in the United States for commercial use and on imported dairy products) and carrying out a coordinated program of promotion designed to strengthen the dairy industry's position in the marketplace
As directed by the 2008 Farm Bill, approximately 360 producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico will become subject to the provisions of the Order as of the effective date of this final rule. The Small Business Administration [13 CFR 121.201] defines small dairy producers as those having annual receipts of not more than $750,000 annually. Most of the producers who will become subject to the provisions of the Order are considered small entities.
Assessments to dairy producers under the Order are relatively small compared to producer revenue. If dairy producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico had paid assessments of $0.15 per hundredweight of milk marketed in 2008, it is estimated that $1.1 million would have been paid. This is about 0.5 percent of the $195 million total value of milk produced and marketed in these areas.
The assessment for dairy producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico will be collected by persons who pay the producers for milk produced and marketed, and the money will be remitted to the Board.
For the purpose of the Regulatory Flexibility Act, a dairy products manufacturer is a small business if it has fewer than 500 employees. For purposes of determining a milk handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the 500-employee limit, the plant is considered a large business even if the local plant has fewer than 500 employees. While the number of anticipated responsible persons collecting assessments under the Order in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico are not known, it is expected that most would be considered small businesses.
According to U.S. Customs and Border Protection (CBP), there were about 3,000 importers of dairy products listed in § 1150.152 (b) in 2007 and 2008. Although data is not available concerning the sizes of these firms, it is reasonable to assume that most of them would be considered small businesses. Although many types of businesses import dairy products, the most common classification for dairy product importers is Grocery and Related Product Merchant Wholesalers (North American Industry Classification System, category 4244). The Small Business Administration [13 CFR 121.201] defines such entities with fewer than 100 employees as small businesses. According to 2006 statistical data from the U.S. Census Bureau, 95.2 percent of these types of businesses had fewer than 100 employees (
This final rule imposes minimal reporting and recordkeeping requirements on importers subject to the Order. Books and records for importers subject to the Order shall be maintained for two years beyond the calendar year in which the import occurs. These books and records would be made available only to the Secretary for inspection during normal business hours if necessary for verification purposes. The proposed rule would have required importers subject to the Order to make books and records available to the Board, but this will not be required as a result of changes in this final rule. This rule requires importers to calculate assessments due based upon documentation concerning the cow's milk solids content of the imported products. Products shall be assessed at the rate of $0.01327 per kilogram of cow's milk solids.
In many cases, the importer would have this documentation on hand as part of normal business practice. Importers must maintain books and records sufficient to verify that products have been properly classified according to the Harmonized Tariff Schedule (HTS). For some HTS codes, this includes books and records indicating that the milk solids content falls within a certain range. Default assessment rates listed in the proposed rule are eliminated in this final rule.
Assessments to importers under the Order are expected to be relatively small compared to the value of dairy imports. If importers had been assessed $0.075 per hundredweight of milk, or equivalent thereof, on imported dairy products in 2008, as specified in this rule, it is estimated that about $4.9 million would have been paid. This is about 0.2 percent of the $2.6 billion value of the imported dairy products.
This final rule provides for organizations that conduct qualified programs to receive assessment funds as designated by individual importers. Additionally, this final rule includes a provision that permits importers and organizations of importers, as approved by the Secretary, to nominate importer representatives to the Board. Such organizations would generally consist of importers who are considered mostly small entities.
Information collection requirements and recordkeeping provisions contained in 7 CFR part 1150 have been previously approved by the Office of Management and Budget and assigned OMB Control Number 0581-0093 under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Section 1601 of the 2002 Farm Bill (Pub. L. 107-171) and section 1601 of the 2008 Farm Bill (Pub. L. 110-246) exempt this rule from the Paperwork Reduction Act. Although exempted, the requirements of the Paperwork Reduction Act were considered in developing the provisions of this final rule. The information collection requirements are minimal but essential to carry out the intent of the Dairy Production Stabilization Act of 1983. The final amended Order provisions have been carefully reviewed and every effort has been made to minimize recordkeeping costs or requirements.
Under the final amended Order provisions, importers will be responsible to pay assessments. CBP will serve as the collecting agent for assessments on imported dairy products and will remit the assessments to the Board. Importers will be required to provide records to the Secretary on occasions when additional information is needed as evidence of compliance, or in cases when the importer seeks a reimbursement of assessments. Such records must be retained for at least two years beyond the calendar year of their applicability.
Additionally, each person making payment to a producer for milk produced in the United States and marketed for commercial use collects an assessment for all such milk handled.
The forms by which producer information is to be collected require the minimum information necessary to effectively carry out the requirements of the Order. There are no training requirements for individuals filling out reports and remitting assessments to the Board. The forms are designed to be simple and easy to understand, placing as small a burden as possible on the persons required to file the information.
The timing and frequency of collecting information are intended to meet the needs of the National Program while minimizing the amount of work necessary to fill out the required reports. In addition, the information to be included on these forms is not available from other sources because such information relates specifically to individual producers and responsible persons who are subject to the provisions of the Order. Therefore, there is no practical method for collecting the required producer information without the use of these forms.
The assessment places a minimal burden on newly regulated producers or importers who seek to direct monies to qualified programs. The amount of time required to designate to a qualified program is estimated to be 15 minutes to prepare a written request. Qualified programs are certified by the Secretary to receive assessment money from producers and importers for the purpose of promoting dairy products.
The amended Order provisions would place a minimal burden on newly regulated producers or importers who seek nomination to serve on the Board. Importers and producers would be required to complete a background information form for submission to the Secretary. The estimated time for completing the form is 30 minutes, which includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the form. Additionally, there would be minimal burden on importer organizations that voluntarily request to be approved by the Secretary to participate in the National Program by making nominations to the Board. The estimated time for reporting this is 30 minutes.
Currently, a producer who operates under an approved National Organic Program (NOP) (7 CFR part 205) certificate and thus only produces products that are eligible to be labeled as 100 percent organic under the NOP, and is not a split operation, shall be exempt from the payment of assessments. The final rule provides that an importer who imports only products that are eligible to be labeled as 100 percent organic under the NOP (7 CFR part 205) and who is not a split operation, would likewise be exempt from the payment of assessments. The Order places a minimal burden on a producer or importer applying for such an exemption. The producer or importer must provide a request to the Board, on a form provided by the Board, at any time initially and annually thereafter. The documentation is the same for importers as for producers.
In addition, there are some requirements for information from importers that are occasional. For example, if an importer files for reimbursement or applies for reimbursement of assessments from the Secretary for an overpayment, circumstances dictate the time that it would take for the importer to gather the information necessary to make the claim. Assembling and transmitting the necessary documentation to the Secretary would place a minimal burden on importers.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies, and to provide increased opportunity for citizen access to Government information and services and for other purposes.
The Dairy Production Stabilization Act of 1983 (Act) authorizes the Order for dairy product promotion, research, and nutrition education as part of a comprehensive strategy to increase human consumption of milk and dairy products and to reduce milk surpluses. The National Program functions to strengthen the dairy industry's position in the marketplace by maintaining and expanding domestic and foreign consumption of fluid milk and dairy products.
Section 1505 of the 2002 Farm Bill requires that the Order be amended to implement a mandatory assessment on dairy products imported into the United States and that the assessment be submitted to CBP at the time entry documents are filed.
Section 1507 of the 2008 Farm Bill amended the term “United States” in section 4502(1) of the Act to mean all of the States, the District of Columbia, and the Commonwealth of Puerto Rico. This amendment requires that Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico be added to the existing regions of the Board and that producers in these areas be assessed 15 cents per hundredweight on all milk produced and marketed commercially.
Section 10607 of the 2002 Farm Bill provides for an exemption from payment of assessments by organic milk producers and importers of organic dairy products. Section 1150.157 of the Order currently provides the specific requirements necessary for producers to receive the exemption.
A producer that operates under an approved National Organic Program (NOP) (7 CFR part 205) certificate and thus only produces products that are eligible to be labeled as 100 percent organic under the NOP, and is not a split operation, would be exempt from the payment of assessments. An importer who imports only products that are eligible to be labeled as 100 percent organic under the NOP (7 CFR part 205), and is not a split operation, also would be exempt from the payment of assessments. To receive the exemption, producers and importers of products labeled as 100 percent organic, and who do not produce or market any non-organic products, would provide a request to the Board, on a form provided by the Board, at any time initially and annually thereafter.
Additionally, the 2002 Farm Bill amendments authorize importers to have representation on the Board. Initially, importers are required to be represented by two importers appointed by the Secretary. Thereafter, importer representation on the Board will be adjusted at least once every three years, if necessary, to reflect the volume of imports relative to domestic production of milk. The amendments also specify
The 2002 Farm Bill specifies that the assessment be 15 cents per hundredweight, or equivalent thereof, on dairy products imported into the United States. However, this rate was changed with the 2008 Farm Bill; section 1507 specifies that the assessment will be 7.5 cents per hundredweight of milk, or the equivalent thereof. The assessment is equivalent to one-half the payment domestic dairy farmers are required to remit.
Finally, the 2002 Farm Bill amended the policy statement in the Act to make it clear that the purpose of the program is to expand the consumption of dairy products, whether produced domestically or imported. A program that promotes the substitution of a dairy product from one source with a dairy product from another source would not be consistent with this policy. Likewise, the Board and the Department will consider carefully whether any brand advertising or promotion would have a detrimental effect on other brands of dairy products before giving approval. No program would be approved if it would negatively affect similar domestic or imported dairy products.
Subtitle F of Title 1 of the 2002 Farm Bill at section 1601 and Subtitle F of Title 1 of the 2008 Farm Bill at section 1601 provide for the implementation timeframe and the promulgation of these regulations without regard to the Paperwork Reduction Act (44 U.S.C. chapter 35); the Statement of the Policy of the Secretary of Agriculture, effective July 24, 1971 (36 FR 13804); and the notice and comment provisions of section 533 of Title 5, United States Code. However, due to the interest of affected parties, a proposed rule was published in the
The Department received 189 comments from individuals, trade organizations, importer organizations, domestic dairy producers, domestic and foreign dairy cooperatives, foreign governments, domestic and foreign dairy companies, a foreign dairy promotion board, State governments, attorneys, and international trading companies. The issues raised in the comments that resulted in the greatest changes from the proposed rule concerned the use of default assessment rates and concerns over confidentiality and business information associated with compliance, enforcement, and recordkeeping. Other provisions changed or clarified in the final rule relate to milk solids content; Harmonized Tariff Schedule codes; qualified programs; referendum provisions; organic exemptions; duties of the board; and definitions of CBP, importer, and qualified programs.
The 2002 Farm Bill mandates that the import assessment be implemented in a manner consistent with United States trade obligations. USDA has consulted with the Office of the United States Trade Representative to ensure that this final rule is consistent with the international trade obligations of the Federal Government.
Under the proposed rule, an importer with adequate documentation concerning the milk solids content of an imported dairy product would pay an assessment based upon milk solids content. Further, the proposed rule stated that an importer without adequate documentation concerning the milk solids content of an imported dairy product would pay a default assessment rate per HTS code. For most products, the default assessment rate for each HTS code would have been based upon estimated maximum milk solids content.
Several commenters objected to the proposal to set default rates at the maximum milk solids content for most products. The commenters argued that this would be unequal treatment for importers in comparison to domestic producers. The Department does not agree with the commenters' unequal treatment assertions. However, the Department has determined that in order to provide one clear and consistent method for importers to calculate the assessment, to simplify program administration, and to best effectuate the purposes of the Act, default assessment rates should not be included in the Order provisions. Accordingly, importers will be required to pay based upon cow's milk solids content of imported dairy products.
Since the mandatory 7.5-cents assessment is per one hundred pounds of milk, this final rule applies a standard rate of assessment per unit of milk solids. On average during the period January 2006 through December 2007, a hundredweight of U.S. producer milk contained 12.45 pounds of milk solids (3.68 percent butterfat and 8.77 percent nonfat milk solids). Since the assessment rate stated in the 2008 Farm Bill is 7.5 cents per hundredweight of milk or its equivalent, this final rule establishes the assessment rate per volume of imported milk solids as $0.00602 per pound ($0.075/12.45 pounds) or $0.01327 per kg (1 kg = 2.204623 pounds.) This rate shall be applied to the cow's milk solids content for any imported product listed in the table displayed in section 1150.152(b)(1).
Several commenters also indicated that in some cases it is overly burdensome for the importer to obtain documentation concerning the milk solids content of the imported dairy products. The Department disagrees with these comments. Where documentation of cow's milk solids content is not presently available, the importer could ask the seller or manufacturer to provide such information. Cow's milk solids product content could be communicated to the importer through an invoice, packing slip, bill of lading, laboratory test results, a letter from the manufacturer on the manufacturer's letterhead, or similar documents.
Several commenters recommended that the final rule be amended to include provisions restricting access to confidential business information provided in connection with import assessments. As proposed, the rule gave the Board the discretion to verify milk solids content reported by importers to the CBP to determine if additional money is due the Board or if an amount is due to an importer. The commenters noted that the verification of milk solids content of some products requires more specific information on product composition than is currently required under applicable labeling and import regulations. Specifically, one commenter noted that verifying the calculation of the milk solids content of a particular product requires revealing the exact proportion of constituent components of that product, and as such, verification reports are likely to contain confidential, proprietary, and commercially sensitive data. In light of this, this section is modified to require the Secretary, not the Board, to verify information reported by importers.
Section 1150.171(b) of the proposed rule would require importers of dairy products to submit reports as requested by the Board or the Department as necessary to verify that provisions pursuant to § 1150.152(b) have been carried out correctly, including verification that correct amounts were paid based upon milk solids content of
Several commenters argued that import assessments would amount to unfair treatment because some imported products will not benefit to the same extent as others. While not all imported dairy products are promoted, or receive little promotion, the same situation similarly exists with domestic dairy production; the Board does not specifically promote all dairy products. This is evidenced in the cost-benefit analysis, noting that the Board does not specifically advertise or promote ice cream, even though dairy farmers pay a 15-cent per hundredweight assessment for milk used in the production of ice cream. Other examples would be food preparations, infant formula, and milk chocolate, all of which contain dairy products. Thus, the import assessment will be collected on all specified imported dairy products and imported products containing cow's milk solids, whether or not the Board chooses to promote such products. The National Program provides benefits relative to all dairy products, whether or not they are specifically promoted. With increased dairy consumption, the market for milk solids tightens. Prices are higher for the entire array of products that contain milk solids, both domestic and imported. Even products that are not directly promoted through the National Program receive this benefit.
It is important to note that not all domestic producers or importers would receive benefits equally. Some importers may benefit more than others due to the portfolio of dairy products promoted by the Board. An equivalent case can be made for domestic dairy producers. A dairy producer in a region with high cheese production may benefit from cheese promotions more than a dairy producer in a low cheese production area. Some commenters argued that dairy producers would receive equal benefits from the National Program because most of the milk is pooled under the Federal milk marketing order system or a similar State program. However, the Federal milk marketing order system and similar State programs do not cover all milk marketed and do not set the prices that dairy producers receive; rather, they require handlers to pay minimum prices. Handlers may, and often do, pay producers or their cooperative more than minimum prices required by the pools. Furthermore, pools in different regions of the country vary in milk utilization, and thus minimum prices required by the pools may reflect different levels of benefits from the National Program.
One commenter noted that the current dairy promotion program primarily promotes fluid milk sales, and to a lesser degree, sales of American-style cheeses. The commenter also stated that the U.S. does not import fluid milk from Mexico, and that Mexican-style cheese imported into the U.S. is far different than American-style cheeses. To that end, the commenter noted that imports of dairy products from Mexico are primarily specialized proteins (and specialty cheese) which are mainly used in food products that are not dairy products and that the current promotion program would not benefit them or the products they import. Similarly, another commenter noted that a large proportion of imported dairy products into the U.S. are ingredients with a variety of applications, some dairy and some non-dairy in nature. It was argued that these imported ingredients will not benefit from the promotion program, particularly when used in non-dairy products.
With respect to the aforementioned comments, and as correctly noted by one of the commenters, domestic producers are assessed per hundredweight on all milk produced and marketed commercially, and the disposition or final usage of the raw milk is not a fact in determining the assessment. Likewise, the Farm Bills require an assessment on imported dairy products, regardless of the final disposition of the product or usage. Additionally, contrary to the comments provided by some commenters; the current National Program does promote dairy ingredients by marketing dairy ingredient benefits to food and beverage manufacturers and to help launch new or improved products. The National Program offers a variety of insights on ingredient marketing, nutrition, processing and testing. In 2008, the National Program spent approximately $4.9 million on ingredient research and promotion. Furthermore, importers would benefit from potentially higher prices. Also, with the changes to the provision of the Order made by this final rule, imported dairy products and ingredients could be promoted to a greater extent than with the current National Program.
Several commenters also indicated that 2007, the year considered by the cost-benefit analysis for the proposed rule, was an anomalous year. Had data from other years been examined, the commenters indicated the Department would have observed that Tariff Rate Quotas (TRQs) would have been of a greater restraint. For the final rule, the cost-benefit analysis has been updated based upon data from 2008. Similarly, the Department found that TRQs seem to constrain dairy imports in varying degrees for some products, but not for others.
With respect to TRQs, one commenter proposed that importers be refunded for any year in which the TRQ fill rate for a particular product exceeds 85 percent. At this level, the commenter asserted that imports are constrained, limiting the benefits of the National Program. It is important to note that TRQs are rarely 100-percent filled due to licensing requirements of imported dairy products. However, the fact that a TRQ is filled or nearly filled is not a clear indication that importers do not receive benefits from the National Program. It is reasonable to conclude that some TRQs would have had lesser fill rates without the National Program. Furthermore, importers potentially benefit from the generally higher prices brought about by the National Program. For these reasons, the commenter's proposal is not adopted.
In varying degrees of detail, several opponents of the proposed rule claimed that implementation of an assessment on imported dairy products would be a potential violation of the national treatment obligations under the World Trade Organization (WTO). Opponents of the import assessment asserted several reasons, including several references to potential violations of the General Agreement on Trade and Tariffs (GATT). As required by Section 4503(d)
With the passage of the 2002 Farm Bill, the policy statement in the Act was amended to make it clear that the purpose of the National Program is to expand the consumption of dairy products, whether produced domestically or imported. A program that promotes the substitution of a dairy product from one source with a dairy product from another source for consumption in the U.S. market is not consistent with this policy. Several commenters suggested that the proposed changes only generally remove the requirement that programs promote products of the United States, but indicated the changes are not sufficiently clear that going forward that they must be neutral with respect to country of origin. Additionally, the commenters suggested that the Board and Dairy Management Inc. (DMI), the staffing and management organization for the National Program, would have to ensure that any of its activities, including salaries and expenses from conducting export promotion marketing or coordination and management of export promotion, that are funded all or in-part by the Board would be neutral with respect to State or country of origin, including any promotion tools. Further, the commenters suggested that the Order require AMS to certify the neutrality of all policies and activities of the National Program prior to the distribution of any importer assessment monies to the Board. Several commenters also raised concerns that the “Real Seal” and other programs that are only available to domestic products, if not eliminated or completely revised, would, in their view, adversely affect conditions of competition for imports, thereby potentially violating GATT Article III:4.
AMS provides the day-to-day oversight for all activities related to the National Program. AMS oversight activities include reviewing and approving DMI and the Board's budgets, budget amendments, contracts, advertising campaigns, investment plans, and all materials developed for public distribution. Additionally, AMS ensures that all expenditure of promotion funds is consistent with the Act and the Order, and the Agency's other responsibilities relate to nominating and appointing Board members, amending the orders, conducting referenda, and conducting periodic program audits. Further, AMS representatives attend full Board meetings, committee meetings, and other staff and member meetings of consequence to the National Program. Given AMS's extensive oversight activity and policies relating to program review, it is neither necessary nor appropriate to implement additional provisions at this time to ensure appropriate expenditure of funds with respect to neutrality. Additionally, as of the effective date of these amendments, all of the National Program's activities will be consistent with respect to neutrality and country of origin. Several commenters accurately noted that by striking the words “produced in the United States” from the definition of milk, programs like the “Real Seal” and “3-A-Day” partners, and promotional offers will become available to international dairy brands and importers. Such programs will no longer be allowed to refer specifically to domestically produced dairy products if funded by the Board. Also research carried out with assessment funds would be available to all of the importers subject to the assessment.
Additionally, commenters raised concerns about other specific National Program activities, such as the promotion of American artisanal cheese and “The New Look of School Milk” program. As of the effective date of these amendments, all of these activities must comply with the new policy statement with respect to neutrality and country of origin.
Separately, several commenters raised the concern of whether or not the prohibitions and restrictions with respect to neutrality apply to qualified programs and the promotion of State brands. Section 4512(a) of the Act (Administrative Provisions) states “Nothing in this subchapter may be construed to preempt or supersede any other program relating to dairy product promotion organized and adopted under the laws of the United States or any State.” This statutory policy provides qualified programs with as much freedom to continue their present operation and is consistent with a coordinated effort. As such, the policy is retained and qualified programs may continue to promote State brands. Research has shown that promotion of State brands, to the extent they reflect a type of brand, can increase dairy category sales and is consistent with the intent of the Act to raise the demand and consumption for dairy products generally. Review and/or approval authority of the Board and the Department regarding branded advertising or promotion by qualified State or regional programs will remain as it presently exists and is not modified under this proceeding. Several commenters questioned whether this proceeding would impact the ability of qualified programs to build demand for locally produced milk and dairy products; it does not. Similarly, this does not impact the ability of importer qualified programs to build demand for imported dairy products.
One commenter questioned whether the provision striking the use of the words “produced in the United States” was contrary to the recently implemented Country of Origin Labeling (COOL) legislation (7 U.S.C. 1638-1638d). COOL provisions require certain food retailers (supermarkets and grocery stores) to provide additional information (country of origin information) to consumers on specific food items at the point of purchase. COOL does not apply to dairy products. The COOL program is not related to this proceeding and there are no applicable provisions or requirements that overlap with this final rule.
As provided in the 2008 Farm Bill, the Board's budget may provide for the expenditure of revenues available to the Board to develop international markets for, and to promote within such markets, the consumption of dairy products produced or manufactured in the United States through 2012. Several commenters questioned how importers would be assured that their assessments would not be used to fund development of foreign markets for U.S. products. Commenters also suggested that allowing up to 100 percent of domestic producer assessments to go into export promotion could result in allowing import assessments to pay more than their “share” of domestic promotion thereby subsidizing the export promotion activities. They also noted that if uncapped levels of domestic assessments are allowed to go into export promotion, import assessments could fund a disproportionate share, up to 100 percent, of the domestic program and therefore, underwrite the domestic gains to producers.
Accordingly, some commenters proposed that USDA should track imported dairy products on a milk equivalent basis as a percentage of domestic commercial disappearance. The commenters noted that if imports are 5 percent of the domestic market, for instance, then the Board must fund 95 percent of domestic promotion from
Section 4501(b) of the Act states that domestic promotion under the National Program must include imported dairy products, and section 4504(e)(2) of the Act states that with respect to foreign market efforts, “* * * the Board's budget may provide for the expenditure of revenues available to the Board to develop international markets for, and to promote within such markets, the consumption of dairy products produced or manufactured in the United States.” For clarification, with this final rule, section 1150.140(n) has been expanded to indicate that the duties of the Board are to encourage the coordination of programs of promotion, research, and nutrition education designed to strengthen the dairy industry's position in the marketplace and to maintain and expand: (1) Domestic markets and domestic uses for fluid milk and dairy products produced in the United States or imported into the United States; and (2) foreign markets and foreign uses for fluid milk and dairy products produced in the United States.
Notwithstanding the aforementioned, the USDA Report to Congress as required in section 4514(4) of the Act must provide an accounting for the receipt and disbursement of all funds received by the Board. This includes funds received from importers. AMS will require the Board to provide an accounting and evaluation of all activities targeted at the promotion of imported dairy products to be included in its annual Report to Congress.
Commenters argued that the proposed rule included assessments on products that fall outside the scope of accepted international definitions for dairy products. Several commenters suggested limiting the number of products to be assessed to those in Chapter 4 of the HTS, referring to the Explanatory Notes (ENs) for the definitions in the “General” section for Chapter 4.
In this final rule, 265 of the 266 HTS codes listed in section 1150.152(b) of the proposed rule are adopted. HTS code number 1901.90.9082 is for corn-soya milk blends that do not contain over 5.5 percent by weight of butterfat and are not considered dairy products as described in additional note 1 to Chapter 4 of the HTS. After consultation with CBP, it is concluded that products imported under this HTS code would not likely contain milk solids. Accordingly, products imported under this HTS code are not included in the import assessment.
Several interested parties suggested alternatives that would require import assessments first to be remitted to the Department rather than to the Board after submission to CBP. These alternatives are not adopted. Section 4504(g)(6)(A) of the Act specifically states that the order shall provide that each importer of imported dairy products shall pay an assessment to the Board in the manner prescribed by the Order.
The Order is administered by a 36-member Board appointed by the Secretary representing 13 geographic regions of the United States. In order to complement the current geographical make up of the existing regions, the proposed rule indicated that each of the four new jurisdictions be added to the region of closest geographic proximity. No comments were received in opposition to this proposal, and it is adopted as proposed.
Therefore, Alaska is added to Region 1, currently comprised of Oregon and Washington; Hawaii is added to Region 2, currently California; and the District of Columbia and the Commonwealth of Puerto Rico are added to Region 10, currently comprised of Florida, Georgia, North Carolina, South Carolina and Virginia. Each person making payment to a producer in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico for milk produced and marketed for commercial use, is required to collect an assessment on all milk handled for the account of the producer at the rate of 15 cents per hundredweight and must remit the assessment to the Board. Any producer marketing milk of that producer's own production in the form of milk or dairy products to consumers, either directly or through retail or wholesale outlets, must remit to the Board an assessment on such milk at the rate of 15 cents per hundredweight. Each person responsible for the remittance of the assessment for milk marketings from producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico must remit to the Board not later than the last day of the month following the month in which the milk was marketed.
Several interested parties raised concern regarding proposed importer representation on the Board. In accordance with the Act, the proposed rule indicates that importers will initially be represented by two importer representatives. Assessments collected from importers will be held in escrow until importer representatives are appointed. The interested parties proposed that the Order should provide for permanent representation of at least two importers or importer representatives on the Board. This proposal is not adopted. The 2002 Farm
In response to commenter's requests for specific information regarding importer representation and appointment to the Board, the Secretary will issue a separate notice in the
Importer nominations may be submitted by individual importers of dairy products and by organizations representing dairy importers, as approved by the Secretary. Nominees must be importers of dairy products and subject to the assessment to fund the National Program. The primary considerations in determining if organizations adequately represent importers of dairy products shall be whether its membership consists primarily of importers of dairy products and whether a substantial interest of the organization is in the importation of dairy products and the promotion of the nutritional attributes of dairy products. Individual importers submitting nominations to represent importers on the Board must establish, to the satisfaction of the Secretary that the person submitting the nomination is an importer of dairy products. Approval of importers and organizations representing importers will occur in a manner prescribed by the Secretary. An importer means a person that imports dairy products into the United States as a principal or as an agent, broker, or consignee of any person who produces or handles dairy products outside of the United States for sale in the United States, and who is listed as the importer of record for such dairy products.
Several interested parties also raised concerns regarding sufficient importer representation on the Board's Executive Committee. The Board's current Executive Committee is comprised of all members of the Board. Section 1150.140(b) of this rule specifically provides that the Board's Executive Committee be comprised of membership that equally reflect each of the different geographic regions in the United States in which milk is produced and importer representation on the Board. Accordingly, this provision is made final without modifications.
One commenter questioned importer representation of two seats on the Board, citing that domestic producers in regions 1, 8, 10, and 13 collectively represent a significant number of producers and production and accordingly are afforded only one seat. The Act and the Order are clear with respect to the formulas used to determine the number of members from each region of the Board. The number of members for each region on the Board is determined by dividing the total pounds of milk produced in the United States for the calendar year previous to the date of review by 36, which provides a factor of pound of milk per member, and then dividing the total pounds of milk for each region by such factor. With respect to importer representation, the law states clearly that importers initially shall be represented by two members.
Several commenters requested additional information and guidance as to how decisions are made by the Board or how conflicts are resolved with respect to conflicting promotions. Currently, joint committees of the Board are responsible for setting program priorities, planning activities and projects, and evaluating results. With respect to decisions, the Board's current by-laws state that any action of the Board requires the concurring votes of at least a majority of those present and voting. Importer representatives on the Board will take part in this process upon appointment.
Several interested parties recommended that USDA hold in escrow any funds earmarked by an importer for contribution to a qualified program until importer programs are qualified by the Secretary. Further, several commenters noted that the proposed rule does not specify how assessments above the 5 cents are to be directed if a qualified program is not designated. Commenters also noted that the purposes of the rule would be best met if the qualified portion were held until it could be disbursed pro rata to all qualified programs relating to imported products.
Currently, if a producer does not designate or if the producer's paying handler does not establish that producer's participation in a qualified program, the full assessment is remitted to the Board. Similarly, if an importer does not designate or if participation in a qualified program is not established, the Board would retain the full assessment. Accordingly, the commenters' suggested alternative provisions to hold the qualified programs' portion relating to imported products and disburse pro rata, or until an importer qualified program is established, would not be appropriate and are not adopted.
The proposed rule stated that importers will be required to submit 7.5 cents per hundredweight of milk, or equivalent thereof, on imported dairy products to the Board, of which an importer may direct the Board to forward up to 2.5 cents per hundredweight of milk, or equivalent thereof, to a qualified program. Commenters stated that domestic milk producers are required to send only one-third of their assessment to the Board, whereas importers would be required to contribute two-thirds of their assessment to the Board. The commenters also suggested that as proposed, the Order does not comply with international obligations that dictate fairness and “equal treatment” towards imported products. One commenter argued that importers will disproportionally support operations of the Board, while domestic U.S. milk producers will disproportionately enjoy the benefits of Board promotions.
The proposed provisions specify that the rate of assessment is 7.5 cents per hundredweight, or equivalent thereof, on imported dairy products, but that an importer can instruct the Board to direct up to 2.5 cents per hundredweight for contributions to a qualified program. The Act requires domestic producers to
One commenter questioned whether or not the amount of money designated for importer organizations to conduct promotion, research, or nutrition education programs will equate with the same level of assessments collected with respect to imported product. Importers only are permitted to designate up to 2.5 cents of the 7.5 cents per hundredweight of milk, or milk equivalent thereof, to qualified programs. By law, 5 cents must go to the Board, and therefore the amount of money designated for importer organizations cannot equal the same level of assessments collected on imported dairy products.
The final rule differs from the proposed rule with respect to an importer's designation to a qualified program. With the proposed rule, the importer would have instructed the Board to forward payments to a qualified program. With this final rule, the importer will notify the Secretary to direct the Board to forward payments to a qualified program. The Secretary will compute the funds due each qualified program. This change was made in order to maintain confidentiality of importer records concerning import quantity volumes and quantities of milk solids imported.
One commenter noted that the proposed rule states that any organization which conducts a dairy product promotion and research or nutrition education program authorized by Federal or State law may apply for certification so that producers may receive credit for contributions to such programs, and whether the credit treatment should also be extended to imported product where producers in the country of origin have contributed to generic dairy promotional programs. As indicated in the proposal, the credit only applies to contributions to programs operating under Federal or State laws of the United States or that have been an active and ongoing producer program before enactment of the Act. Therefore, no provisions are included to extend credit allowances for contributions to dairy product promotion programs in foreign countries.
Several commenters noted that while the proposed rule modifies the Order language regarding qualified programs to include those financed primarily by importers, the process by which a program becomes qualified imposes a great burden on importers. These commenters stated that the requirement that the qualified program be authorized under State or Federal law, or has been active and on-going prior to enactment of the Act, will be difficult for importers to achieve since there are no such importer organizations that predate the Act. Additionally, several commenters indicated that authorization under State or Federal law requires that the program be specifically enabled by a state legislature or Congress. One commenter proposed specific language modifying section 1150.153 to include new provisions applicable specifically for importers, noting the Act does not provide any detailed definition of State and regional programs. Additionally, several commenters suggested that the Department revisit this section, citing whether the authority for the Secretary to give credit to national organizations exists under the Order.
The Order currently provides in § 1150.153 that any organization which conducts a State or regional dairy product promotion, research, or nutrition education program that has been active and ongoing before enactment of the Act, or is operated under the laws of the United States or any State, may apply to the Secretary for certification so that producers may receive credit for contributions to such programs towards assessments owed by the producer.
The proposed rule provided that an organization authorized by Federal or state law or an organization that had been active and ongoing before enactment of the Act may apply to the Secretary for certification of qualification so that producers or importers may direct contributions to such programs. While AMS disagrees with any suggestion in the comments that the proposed provisions regarding qualified programs were not authorized by statute or consistent with the Order, we conclude, taking into account comments received, that section 1150.153 should be further revised to add reference to any importer organizations that conduct dairy product promotion, research, or nutrition education programs. Organizations seeking to become an importer qualified program need only submit an application provided by USDA to the Secretary and meet the four criteria as outlined in section 1150.153 to be approved. The process is equivalent to the process used by domestic organizations seeking to become a qualified dairy producer program. The revision would provide a more practical and reasonable option for importers to direct contributions to such programs. Miscellaneous clarifying changes are made to sections 1150.152, 1150.153, and the definition of qualified program in section 1150.153 to retain existing order language with regard to producer organizations to more clearly state provisions concerning qualified programs and credits for producers and for importers.
Several commenters suggested that in order for the Department to provide due process for those importers of dairy products and dairy producers in Alaska, Hawaii, the District of Columbia, and the Commonwealth of Puerto Rico that will become subject to the assessment, a referendum must be held to determine whether or not those affected parties support implementation of the assessment. Commenters assert that implementation of the assessment without conducting a referendum is a violation of the Equal Protection guarantees of the Fifth Amendment. Expressing a different view, several commenters also noted that the Congressional mandate to require an assessment on both domestic production and on imported dairy products has been a matter of law in the United States since 2002.
The Act specifies the circumstances under which a referendum may be conducted. Section 4507(b) of the Act states, “* * * after September 30, 1985, the Secretary may conduct a referendum at any time, and shall hold a referendum on request of a representative group comprising 10 per centum or more of the number of producers and importers subject to the order, to determine whether the producers and importers subject to the order, favor the termination or suspension of the order.” The Act does not provide for the
The proposed rule did not include necessary changes to include importers under “Subpart—Procedure for Conduct of Referenda in Connection with the Dairy Promotion and Research Order.” With this final rule, the appropriate changes have been made.
The proposed rule included definitions for three new terms and definition revisions of three terms to reflect the provisions of the Act. The terms “United States” and “milk” are reproduced verbatim from the Act. The terms “CBP” and “importer” were modified slightly from the language of the Act for clarity. The term “qualified program” was modified to reflect that importer programs may be established that are not necessarily State or regional in scope. The definition of “qualified program” has been changed from the proposed rule in that it refers to section 1150.153, which has changes from the proposed rule as previously discussed.
Several commenters objected to the removal of “produced in the United States” from the term milk, due to the impact this change necessitates in the requirement that dairy products be promoted neutrally and without respect to origin. Additionally, commenters objected to modification of the term “United States” which would necessitate inclusion of producers in Hawaii, Alaska, the District of Columbia, and the Commonwealth of Puerto Rico in the program without providing a referendum on amendments to the program as other U.S. contributors were given. For the reasons stated in previous discussions of comments, the definition changes to the Order are not changed as a result of the comments received.
Several commenters suggested that the current organic exemption, as applied to domestic dairy producers, would almost never be available to imports because importers rarely import organic products exclusively, but rather a combination of organic and non-organic products. Consequently, those commenters suggested the proposed Order include a provision to exempt organic dairy product imports from the assessment. The 2002 Farm Bill, section 10607 states, “A person that produces and markets solely 100 percent organic products, and that does not produce any conventional or nonorganic products, shall be exempt from the payment of an assessment under a commodity promotion law with respect to any agricultural commodity that is produced on a certified organic farm.” In the final rule (70 FR 2744, January 14, 2005), AMS determined that the phrase “produces and markets” should apply to the function the person performs that compels the payment of an assessment. For importers, this means to import the commodity. Accordingly, this final rule subjects dairy importers to similar provisions and is consistent with other research and promotion programs for other agricultural commodities. The proposal to exempt organic dairy product imports is not adopted. However, after further review, this final rule adds an additional provision to the organic exemption provisions in section 1150.157 to allow for a reimbursement of assessments collected by the CBP. This provision is similar to the added provision regarding reimbursement of assessments collected on U.S. produced milk solids or milk solids other than cow's milk discussed in the following section. A clarifying change also is made to this section.
Under the proposed rule, milk solids of U.S. origin would have been excluded from the calculation of dairy import assessments. However, after additional consideration, AMS determined that it is more reasonable and appropriate to include milk solids of U.S. origin in the calculation of dairy importer assessments and allow importers to apply for reimbursement from the Secretary. This final rule includes new language in section 1150.155 to state that any importer of dairy products against whose imports an assessment has been collected under section 1150.152(b) and who believes that such assessment or any portion of such assessment was made on U.S.-produced milk solids or milk solids other than cow's milk may apply to the Secretary for a reimbursement. The importer would be required to submit proof to the Secretary that the import was produced with U.S.-produced milk solids or milk solids other than cow's milk.
A commenter representing customs brokers and forwarders indicated that it will take considerable time for customs brokers to make software changes necessary to calculate import assessments. According to the commenter, brokers are typically allotted 90 days to make any program changes. Upon further consideration and taking into account that CBP collects importer assessments, we believe that 120 days is reasonable. Therefore, the effective date for implementing 1150.152(b), Importer Assessments, shall be the first day of the month following 120 days after publication of this rule.
As noted in the discussion of Neutral Promotion of Dairy Products with Respect to Origin, the Board will be required to make available all domestic promotion programs and materials to all assessed parties. One commenter proposed an additional provision be added to section 1150.140 [Duties of the Board] to clearly state that all domestic promotional programs be available to all assessed parties. Section 1150.139(e) of the Order gives the Board the authority to disseminate information to producers or eligible organizations through programs or by direct contact utilizing the public postage system or other system. The proposed rule modified this subsection of the Order to extend the Board's information dissemination authority to include importers and importer organizations. An additional provision as recommended by the commenter is not necessary and is therefore not adopted.
In paragraph 1150.152(a)(6) and section 1150.187, obsolete language and references have been deleted.
Additionally, for good cause, AMS has determined that it is necessary to set an effective date of less than 30 days for adoption of the provisions regarding nomination and appointment of importer representatives to the Board. This will enable the Secretary to solicit, appoint, and seat importers representatives on the Board in an efficient and expedient manner.
Dairy products, Milk, Promotion, Research.
For the reasons set forth in the preamble, 7 CFR part 1150 is amended as follows:
7 U.S.C. 4501-4514 and 7 U.S.C. 7401.
(a) There is hereby established a National Dairy Promotion and Research Board.
(b) Thirty-six members of the Board shall be United States producers. For purposes of nominating producers to the Board, the United States shall be divided into thirteen geographic regions and the number of Board members from each region shall be as follows:
(1) One member from region number one comprised of the following States: Alaska, Oregon and Washington.
(2) Eight members from region number two comprised of the following States: California and Hawaii.
(3) Four members from region number three comprised of the following States: Arizona, Colorado, Idaho, Montana, Nevada, Utah and Wyoming.
(4) Four members from region number four comprised of the following States: Arkansas, Kansas, New Mexico, Oklahoma and Texas.
(5) Two members from region number five comprised of the following States: Minnesota, North Dakota and South Dakota.
(6) Five members from region number six comprised of the following State: Wisconsin.
(7) Two members from region number seven comprised of the following States: Illinois, Iowa, Missouri and Nebraska.
(8) One member from region number eight comprised of the following States: Alabama, Kentucky, Louisiana, Mississippi and Tennessee.
(9) Three members from region number nine comprised of the following States: Indiana, Michigan, Ohio and West Virginia.
(10) One member from region number ten comprised of the following States: Commonwealth of Puerto Rico, District of Columbia, Florida, Georgia, North Carolina, South Carolina, and Virginia.
(11) Two members from region number eleven comprised of the following States: Delaware, Maryland, New Jersey and Pennsylvania.
(12) Two members from region number twelve comprised of the following State: New York.
(13) One member from region number thirteen comprised of the following States: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.
(c) Two members of the Board shall be importers who are subject to assessments under § 1150.152(b).
(d) The Board shall be composed of milk producers and importers appointed by the Secretary either from nominations submitted pursuant to § 1150.133 or in accordance with § 1150.136. A milk producer may be nominated only to represent the region in which such producer's milk is produced.
(e) At least every five years, and not more than every three years, the Board shall review the geographic distribution of milk production volume throughout the United States and, if warranted, shall recommend to the Secretary a reapportionment of regions and/or a modification of the number of producer members from regions in order to best reflect the geographic distribution of milk production volume in the United States.
(f) At least once every three years, after the initial appointment of importer representatives on the Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. The basis for comparison of domestic production of dairy products to imported products shall be estimated total milk solids. The calculation of total milk solids of imported dairy products for reapportionment purposes shall be the same as the calculation of total milk solids of imported dairy products for assessment purposes.
(g) In determining the volume of milk produced and total milk solids of dairy products produced in the United States, the Board and Secretary shall utilize the information received by the Board pursuant to § 1150.171(a) and data published by the Department.
(a) The members of the Board shall serve for terms of three years, except that:
(1) The members appointed to the initial Board shall serve proportionately, for terms of one, two and three years.
(2) The 2 importer members initially appointed to the Board shall serve until October 31, 2013, and October 31, 2014.
(a) The Secretary shall solicit nominations for producer representation on the Board from all eligible organizations. For nominations of producers, if the Secretary determines that a substantial number of producers are not members of, or their interests are not represented by, such eligible organizations, the Secretary shall also solicit nominations from such producers through general farmer organizations or by other means.
(c) An eligible producer organization may submit nominations only for positions on the Board that represent regions in which such eligible organization can establish that it represents a substantial number of producers. If there is more than one Board position for any such region, the organization may submit nominations for each position.
(d) Where there is more than one eligible organization representing
(e) Nominations for representation of importers may be submitted by:
(1) Organizations that represent importers of dairy products, as approved by the Secretary. The primary considerations in determining if organizations adequately represent importers of dairy products shall be whether its membership consists primarily of importers of dairy products and whether a substantial interest of the organization is in the importation of dairy products and the promotion of the nutritional attributes of dairy products; and
(2) Individual importers of dairy products. Individual importers submitting nominations to represent importers on the Board must establish to the satisfaction of the Secretary that the persons submitting the nominations are importers of dairy products.
Any producer or importer nominated to serve on the Board shall file with the Secretary at the time of the nomination a written agreement to:
(b) Disclose any relationship with any organization that operates a qualified program or has a contractual relationship with the Board; and
From the nominations made pursuant to § 1150.133, the Secretary shall appoint the members of the Board on the bases of representation provided for in §§ 1150.131(b) and 1150.131(c).
(e) To disseminate information to producers, producer organizations, importers, and importer organizations through programs or by direct contact utilizing the public postage system or other systems;
(b) To appoint from its members an executive committee whose membership shall equally reflect each of the different geographic regions in the United States in which milk is produced and importer representation on the Board, and to delegate to the committee authority to administer the terms and provisions of this subpart under the direction of the Board and within the policies determined by the Board;
(n) To encourage the coordination of programs of promotion, research and nutrition education designed to strengthen the dairy industry's position in the marketplace and to maintain and expand:
(1) domestic markets and domestic uses for fluid milk and dairy products produced in the United States or imported into the United States; and
(2) foreign markets and foreign uses for fluid milk and dairy products produced in the United States.
(c) The Board is authorized to expend up to the amount of the assessments collected from United States producers to promote dairy products produced in the United States in foreign markets.
(a)
(2) Any producer marketing milk of that producer's own production in the form of milk or dairy products to consumers, either directly or through retail or wholesale outlets, shall remit to the Board an assessment on such milk at the rate of 15 cents per hundredweight of milk for commercial use or the equivalent thereof.
(3) In determining the assessment due from each producer pursuant to § 1150.152(a)(1) and (a)(2), a producer who is participating in a qualified program(s) under § 1150.153 shall receive a credit for contributions to such program(s), but not to exceed 10 cents per hundredweight of milk marketed.
(4) In order for a producer described in § 1150.152(a)(1) to receive the credit authorized in § 1150.152(a)(3), either the producer or a cooperative association on behalf of the producer must establish to the person responsible for remitting the assessment to the Board that the producer is contributing to a qualified program under § 1150.153. Producers who contribute to a qualified program directly (other than through a payroll deduction) must establish with the person responsible for remitting the assessment to the Board, with validation by the qualified program, that they are making such contributions.
(5) In order for a producer described in § 1150.152(a)(2) to receive the credit authorized in § 1150.152(a)(3), the producer and the applicable qualified program must establish to the Board that the producer is contributing to the qualified program.
(6) The collection of assessments pursuant to § 1150.152(a)(1) and (a)(2) shall begin with respect to milk marketed on and after the effective date of this section and shall continue until terminated by the Secretary.
(7) Each person responsible for the remittance of the assessment pursuant to § 1150.152(a)(1) and (a)(2) shall remit the assessment to the Board not later than the last day of the month following the month in which the milk was marketed.
(8) Money remitted to the Board shall be in the form of a negotiable instrument made payable to “National Dairy Promotion and Research Board.” Remittances and reports specified in § 1150.171(a) shall be mailed to the location designated by the Secretary or the Board.
(b)
(2) The assessment on imported dairy products shall be paid by the importer to CBP at the time of entry summary for any products identified in § 1150.152(b)(1).
(3) The assessments collected by CBP pursuant to § 1150.152(b)(2) of this section shall be transferred to the Board in compliance with an agreement between CBP and the Secretary.
(4) The Secretary, at his or her discretion, shall verify the information reported by importers to CBP to determine if additional money is due the Board or an amount is due to an importer based on the quantity imported and the milk solids content per unit. In the case of money due to an importer from the Board, the Board will issue payment promptly to the importer. In the case of money due from the importer to the Board, the Secretary will send an invoice for payment directly to the importer. The remittance will be due to the Secretary upon receipt of the invoice. The Secretary will promptly forward such payments received to the Board.
(5) If an importer elects to have funds remitted to a qualified program(s), the importer shall inform the Secretary of such designation by sending a letter to an address provided by the Secretary. Importer remittances for qualified program(s) shall not exceed 2.5 cents per hundredweight of milk, or equivalent thereof, of the 7.5 cents per hundredweight of milk, or equivalent thereof, paid by the importer pursuant to § 1150.152(b)(1). The Secretary shall compute the funds due for each qualified program designated by importers and direct the Board to forward such funds to each qualified program.
(6) Assessments collected on imported dairy products shall not be used for foreign market promotion of United States dairy products.
(7) Any money received by the Board pursuant to § 1150.152(b)(1) before the Secretary appoints the initial importer representatives to the Board shall not be spent by the Board but shall be held in escrow until such appointment.
(8) The collection of assessments pursuant to § 1150.152(a) and (b) shall continue until terminated by the Secretary.
(a) Any producer organization that conducts a State or regional dairy product promotion, research or nutrition education program, authorized by Federal or State law; or has been an active and ongoing producer program before enactment of the Act; or is an importer organization that conducts a promotion, research, or nutrition education program may apply to the Secretary for certification of qualification so that:
(1) Producers may receive credit pursuant to § 1150.152(a)(3) for contributions to such program; and
(2) The Board may remit payments designated by importers pursuant to § 1150.152(b)(5).
(b) * * *
(2) Except for producer programs operated under the laws of the United States or any State, and except for importer programs, have been active and ongoing before enactment of the Act;
(3) For producer organizations, be financed primarily by producers, either individually or through cooperative associations, or for importer organizations, be financed primarily by importers;
(4) Not use a private brand or trade name in its advertising and promotion of dairy products unless the Board recommends and the Secretary concurs that such preclusion should not apply;
(5) Certify to the Secretary that any requests from producers or importers for refunds under the program will be honored by forwarding to either the Board or a qualified program designated by the producer or importer that portion of such refunds equal to the amount that otherwise would be applicable to that program pursuant to § 1150.152(a)(3) or (b)(5); and
(a) Whenever the Board or the Department determines through an audit of a person's reports, records, books or accounts or through some other means that additional money is due the Board or that money is due such person from the Board in accordance with 1150.152(a), such person shall be notified of the amount due. The person shall then remit any amount due the Board by the next date for remitting assessments as provided in § 1150.152(a). Overpayments shall be credited to the account of the person remitting the overpayment and shall be applied against amounts due in succeeding months.
(b) Any importer of dairy products against whose imports an assessment has been collected under § 1150.152(b) who believes that such assessment or any portion of such assessment was made on milk solids of U.S. origin or milk solids other than cow's milk may apply to the Secretary for a reimbursement. The importer would be required to submit satisfactory proof to the Secretary that the importer paid the assessment for milk solids from milk produced from the U.S. or milk solids other than cow's milk solids. The Secretary will instruct the Board to send such reimbursement to the importer.
(a)
(1) For the purpose of this section, any assessment pursuant to § 1150.152(a) that was determined at a date later than prescribed by this subpart because of a person's failure to submit a report to the Board when due shall be considered to have been payable by the date it would have been due if the report had been filed when due. The timeliness of a payment to the Board shall be based on the applicable postmark date or the date actually received by the Board, whichever is earlier.
(2) For the purpose of this section, any assessment not collected by CBP at the time entry summary documents are filed by the importer is considered to be past due. If CBP does not collect an assessment from an importer, the importer shall be responsible for paying the assessment and any late charges to the Secretary in the form of a negotiable instrument made payable to “USDA.” The payment shall be mailed to a location designated by the Secretary or sent in an electronic form approved by the Secretary.
(a) A producer described in § 1150.152(a)(1) and (a)(2) who operates under an approved National Organic Program (NOP) (7 CFR part 205) system plan; produces only products that are eligible to be labeled as 100 percent organic under the NOP, except as provided for in paragraph (h) of this section; and is not a split operation shall be exempt from the payment of assessments.
(b) To apply for exemption under this section, a producer pursuant to § 1150.152 (a)(1) and (a)(2) shall submit a request for exemption to the Board on a form provided by the Board at any time initially and annually thereafter on or before July 1 as long as the producer continues to be eligible for the exemption.
(c) A producer request for exemption shall include the following: the producer's name and address, a copy of the organic farm or organic handling operation certificate provided by a USDA-accredited certifying agent as defined in section 2103 of the Organic Foods Production Act of 1990 (7 U.S.C. 6502), a signed certification that the applicant meets all of the requirements specified in paragraph (a) of this section for an assessment exemption, and such other information as may be required by the Board and with the approval of the Secretary.
(d) If a producer described in § 1150.152(a)(1) and (a)(2) complies with the requirements of this section, the Board will grant an assessment exemption and issue a Certificate of Exemption to the producer within 30 days. If the application is disapproved, the Board will notify the applicant of the reason(s) for disapproval within the same timeframe.
(e) The producer described in paragraph (c) of this section shall provide a copy of the Certificate of Exemption to each person responsible for remitting assessments to the Board on behalf of the producer pursuant to § 1150.152(a).
(f) The person responsible for remitting assessments to the Board pursuant to § 1150.152(a) shall maintain records showing the exempt producer's name and address and the exemption number assigned by the Board pursuant to § 1150.172(a).
(g) An importer who imports only products that are eligible to be labeled as 100 percent organic under the NOP (7 CFR part 205) and who is not a split operation shall be exempt from the payment of assessments. That importer may submit documentation to the Board and request an exemption from assessment on 100 percent organic dairy products—on a form provided by the Board—at any time initially and annually thereafter as long as the importer continues to be eligible for the exemption. This documentation shall include the same information required of producers in paragraph (c) of this section. If the importer complies with the requirements of this section, the Board will grant the exemption and issue a Certificate of Exemption to the importer. The Board will issue the importer a 9-digit alphanumeric Harmonized Tariff Schedule (HTS) classification valid for 1 year from the date of issue. This HTS classification should be entered by the importer on the Customs entry documentation.
(h) The exemption will apply not later than the last day of the month following the Certificate of Exemption issuance date.
(i) Agricultural commodities produced and marketed under an organic system plan, as described in 7 CFR 205.201, but not sold, labeled, or represented as organic, shall not disqualify a producer from exemption under this section, except that producers who produce both organic and non-organic agricultural commodities as a result of split operations shall not qualify for exemption. Reasons for conventional sales include lack of demand for organic products, isolated use of antibiotics for humane purposes, chemical or pesticide use as the result of State or emergency spray programs, and crops from a buffer area as described in 7 CFR part 205, provided all other criteria are met.
(j) Importers who are exempt from assessment in paragraph (g) of this section shall be eligible for reimbursement of assessments collected by the CBP and may apply to the Secretary for a reimbursement. The importer would be required to submit satisfactory proof to the Secretary that the importer paid the assessment on exempt organic products.
(a) Each producer marketing milk of that producer's own production directly to consumers and each person making payment to producers and responsible for the collection of the assessment under § 1150.152(a) shall be required to report at the time for remitting assessments to the Board such information as may be required by the Board or by the Secretary. Such information may include but not be limited to the following:
(1) The quantity of milk purchased, initially transferred or which, in any other manner, are subject to the collection of the assessment;
(2) The amount of assessment remitted;
(3) The basis, if necessary, to show why the remittance is less than the number of hundredweights of milk multiplied by 15 cents; and
(4) The date any assessment was paid.
(b) Importers of dairy products shall submit reports as requested by the Secretary as necessary to verify that provisions pursuant to § 1150.152(b) have been carried out correctly, including verification that correct amounts were paid based upon milk solids content of the imported dairy products pursuant to § 1150.152(b)(1).
(a) Each producer who is subject to this subpart, and other persons subject to § 1150.171(a), shall maintain and make available for inspection by employees of the Board and the Secretary such books and records as are necessary to carry out the provisions of this subpart and the regulations issued
(b) Each importer of dairy products shall maintain and make available for inspection by the Secretary such books and records to verify that provisions pursuant to § 1150.152(b) have been carried out correctly, including verification that correct amounts were paid based upon milk solids content of the imported dairy products. Such records shall be retained for at least two years beyond the calendar period of their applicability. Such information may include but not be limited to invoices, packing slips, bills of lading, laboratory test results, and letters from the manufacturer on the manufacturer's letterhead stating the milk solids content of imported dairy products.
The information collection and recordkeeping requirements contained in §§ 1150.133, 1150.152, 1150.153, 1150.171, 1150.172, and 1150.273 of these regulations (7 CFR part 1150) have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB Control Number 0581-0093 as appropriate.
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The FDIC is adopting a final rule to update cross-references in its anti-money laundering program and Fair Credit Reporting Act rules, to conform to changes in the numbering of the Department of the Treasury's rules that implement the Bank Secrecy Act.
Effective March 18, 2011.
Division of Risk Management Supervision and Consumer Protection: Debra Novak (202) 898-6641; Legal Division: Carl Gold, Counsel, (202) 898-8702; Richard M. Schwartz, Counsel, (202) 898-7424.
As required by section 8(s) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(s), the FDIC's regulation, 12 CFR 326.8, requires every State nonmember bank to establish and maintain procedures reasonably designed to assure and monitor its compliance with the requirements of the Bank Secrecy Act (“BSA”), 31 U.S.C. 5311
To conform to this change, the FDIC is amending a general cross-reference to the BSA regulations in 12 CFR 326.8, and specific cross-references to the Customer Identification Program (“CIP”), 31 CFR 103.121, in 12 CFR 326.8, 12 CFR 334.82, and Appendix J to Part 334. The CIP regulation, which is substantively unchanged, is now found at 31 CFR 1020.220.
The Administrative Procedure Act, 5 U.S.C. 553(b) provides that a final regulation may be issued without prior notice or an opportunity for comment when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The FDIC finds that good cause exists as the regulatory amendments are nonsubstantive, and therefore notice and public procedure are unnecessary. 5 U.S.C. 553(d) provides that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, with some exceptions. Since this is not a substantive rule, the rule is effective immediately upon publication in the
The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. See 5 U.S.C. 603 and 604. As noted previously in the
There are no information collection requirements in this final rule.
Banks, banking, Currency, Insured nonmember banks, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the FDIC hereby amends 12 CFR chapter III as follows:
12 U.S.C. 1813, 1815, 1817, 1818, 1819 (Tenth), 1881-1883; 31 U.S.C. 5311-5314 and 5316-5332.2.
(a)
(b)
(2)
12 U.S.C. 1818, 1819 (Tenth) and 1831 p-1; 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t, 1681w, 6801 and 6805, Pub. L. 108-159, 117 Stat. 1952.
(c) * * *
(2) * * *
(i) * * *
(A) Obtains and uses to verify the consumer's identity in accordance with the requirements of the Customer Identification Program (CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 1020.220);
(a) Obtaining identifying information about, and verifying the identity of, a person opening a covered account, for example, using the policies and procedures regarding identification and verification set forth in the Customer Identification Program rules implementing 31 U.S.C. 5318(l) (31 CFR 1020.220); and
By order of the Board of Directors.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for Boeing Model 747-8 airplanes. This airplane will have novel or unusual design features associated with connectivity of the passenger domain computer systems to the airplane critical systems and data networks. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Will Struck, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2764; facsimile (425) 227-1149.
On November 4, 2005, The Boeing Company, P.O. Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 970,000 pounds and new General Electric GEnx-2B67 engines. The Model 747-8 will have two flight crew and the capacity to carry 605 passengers.
Under the provisions of Title 14 Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 (hereafter referred to as the 747-8) continues to meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except for §§ 25.809 and 25.812, which will remain at Amendment 25-115. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8.
If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the 747-8 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.
The Boeing Model 747-8 airplane will incorporate the following novel or unusual design features: Digital systems architecture composed of several connected networks. The network architecture would be used for a diverse set of functions, including:
1. Flight-safety related control, communication, and navigation systems (Aircraft Control Domain),
2. Airline business and administrative support (Airline Information Domain),
3. Passenger information and entertainment systems (Passenger Entertainment Domain), and
4. The capability to allow access to or by external network sources.
Notice of proposed special conditions No. 25-10-01-SC for the Boeing Model 747-8 airplane was published in the
As discussed above, these special conditions are applicable to Boeing
This action affects only certain novel or unusual design features of the Boeing Model 747-8 airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 747-8 airplane.
The design must prevent all inadvertent or malicious changes to, and all adverse impacts upon, all systems, networks, hardware, software, and data in the Aircraft Control Domain and in the Airline Information Domain from all points within the Passenger Information and Entertainment Domain.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Gulfstream GVI airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include an electronic flight control system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Joe Jacobsen, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Standards Staff, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2011; facsimile (425) 227-1320.
On March 29, 2005, Gulfstream Aerospace Corporation (hereafter referred to as “Gulfstream”) applied for an FAA type certificate for its new Gulfstream Model GVI passenger airplane. Gulfstream later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to September 28, 2006. The Gulfstream Model GVI airplane will be an all-new, two-engine jet transport airplane with an executive cabin interior. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.
Under provisions of Title 14 Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Gulfstream Model GVI airplane (hereafter referred to as “the GVI”) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-119, 25-122 and 25-124. If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model under the provisions of § 21.101.
In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The GVI will have a fly-by-wire electronic flight control system. This system provides an electronic interface between the pilot's flight controls and the flight control surfaces for both normal and failure states, and it generates the actual surface commands that provide for stability augmentation and control about all three airplane axes. Because electronic flight control system technology has outpaced existing regulations (primarily §§ 25.671 and 25.672), a special condition is needed to ensure appropriate mode recognition by the flight crew for events which significantly change the operating mode of the electronic flight control system.
Notice of proposed special conditions No. 25-10-02-SC for Gulfstream GVI airplanes was published in the
The commenter, Gulfstream, requested that the special conditions be revised to clarify the conditions in which the mode annunciation should occur. Gulfstream suggested that additional annunciation should not be required when transitioning from one normal operation mode to another in response to flight crew actions, such as extending flaps or landing gear.
We do not agree with the commenter's recommendation. The current verbiage clearly states that the mode annunciation is only required when “normal handling or operational characteristics” of the airplane are significantly changed or degraded. In the scenario that Gulfstream refers to, there would be no change to the “normal handling or operational characteristics.” Therefore, no annunciation would be required. No changes were made as a result of this comment and the special conditions are adopted as proposed.
As discussed above, these special conditions are applicable to the GVI. Should Gulfstream apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one airplane model. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream GVI airplanes.
If the design of the flight control system has multiple modes of operation, a means must be provided to indicate to the flight crew any mode that significantly changes or degrades the normal handling or operational characteristics of the airplane.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for General Electric Company (GE) CF6-45 and CF6-50 series turbofan engines. That AD currently requires replacing certain forward and aft centerbodies of the long fixed core exhaust nozzle (LFCEN) assembly. This AD adds certain new forward and aft centerbody part numbers (P/Ns) to the list requiring replacement. This AD was prompted by the discovery of more LFCEN forward and aft centerbody P/Ns that require replacement. We are issuing this AD to prevent the forward and aft centerbody of the LFCEN assembly from separating from the engine, causing damage to the engine, and damage to the airplane.
This AD is effective April 22, 2011.
For service information identified in this AD, contact GE-Aviation M/D Rm. 285, One Neumann Way, Cincinnati, OH 45215, telephone 513-552-3272;
You may examine the AD docket on the Internet at
Tomasz Rakowski, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate;
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede airworthiness directive (AD) 2009-04-17, Amendment 39-15823 (74 FR 8735, February 26, 2009). That AD applies to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal and the FAA's response to the comment.
One commenter, Boeing Commercial Airplanes, pointed out that the McDonnell Douglas airplanes affected by the proposed AD should be listed out as DC-10-15, DC-10-30, DC-10-30F, KC-10, KDC-10, and MD-10-30F. The commenter stated that the proposed AD only listed these airplanes as a series.
We agree. We revised this AD as requested, except we listed KC-10 as KC-10A as it appears in the Type Certificate Data Sheet.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously.
We estimate that this AD will affect 383 GE CF6-45 and CF6-50 series turbofan engines installed on airplanes of U.S. registry. We also estimate that it will take about 44 work hours per engine to perform the actions required by this AD, and that the average labor rate is $85 per work-hour. Required parts will cost about $11,000 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $5,645,420.
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
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) is effective April 22, 2011.
(b) This AD supersedes AD 2009-04-17, Amendment 39-15823.
(c) This AD applies to the following engines with a long fixed core exhaust nozzle (LFCEN) assembly forward centerbody, part number (P/N) 1313M55G01 or G02, P/N 9076M28G05, G06, G08, G09, or G10, P/N 9076M82G01 or G03, and aft centerbody P/N 1313M56G01, or P/N 9076M46G02, G04, or G05, installed in:
(1) General Electric Company (GE) CF6-45A, CF6-45A2, CF6-50A, CF6-50C, CF6-50CA, CF6-50C1, CF6-50C2, CF6-50C2B, CF6-50C2D, CF6-50E, CF6-50E1, CF6-50E2, and CF6-50E2B turbofan engines, including engines marked on the engine data plate as CF6-50C2-F and CF6-50C2-R.
(2) These engines are installed on, but not limited to, Airbus A300 series, Boeing 747-200B, 747-200C, 747-200F, 747-300 and 747SR, McDonnell Douglas DC-10-15, DC-10-30, DC-10-30F (KC-10A, KDC-10), and MD-10-30F airplanes.
(d) This AD was prompted by the discovery of more LFCEN forward and aft centerbody P/Ns that require replacement. We are issuing this AD to prevent the forward and aft centerbody of the LFCEN assembly from separating from the engine, causing damage to the engine, and damage to the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(1) Within 18 months after the effective date of this AD, replace forward centerbody, P/N 1313M55G01 and G02, P/N 9076M28G05, G06, G08, G09, and G10, P/N 9076M82G01 and G03, and aft centerbody P/N 1313M56G01, P/N 9076M46G02, G04, and G05 with a forward and aft centerbody that has been modified using the Accomplishment Instructions, Section 3, of GE Service Bulletin (SB) No. CF6-50 S/B 78-0244, Revision 1, dated March 13, 2008, CF6-50 S/B 78-0244, dated July 30, 2007, or CF6-50 S/B 78-0242, dated September 26, 2005.
(2) After 18 months from the effective date of this AD, do not install any engine with forward centerbody, P/N 1313M55G01 or G02, P/N 9076M28G05, G06, G08, G09, or G10, P/N 9076M82G01 or G03, or aft centerbody P/N 1313M56G01, P/N 9076M46G02, G04, or G05 on any airplane.
(f) The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(g) For more information about this AD, contact Tomasz Rakowski, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate;
(h) For service information identified in this AD, contact GE-Aviation M/D Rm. 285, One Neumann Way, Cincinnati, OH 45215, telephone 513-552-3272;
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) issued 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:
An uncontained engine failure has recently occurred on a Rolls-Royce RB211 Trent 900 involving release of high energy debris and resulting in damage to the aeroplane. Analysis of the available elements from the incident investigation shows that an oil fire in the High Pressure/Intermediate Pressure (HP/IP) structure cavity may have initiated a sequence of events leading to rupture of the drive arm of the IP Turbine (IPT) disc and subsequent overspeed and burst of that same disc.
This AD becomes effective April 4, 2011.
We must receive comments on this AD by April 18, 2011.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803;
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0262, dated December 13, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
An uncontained engine failure has recently occurred on a Rolls-Royce RB211 Trent 900 involving release of high energy debris and resulting in damage to the aeroplane. Analysis of the available elements from the incident investigation shows that an oil fire in the High Pressure/Intermediate Pressure (HP/IP) structure cavity may have initiated a sequence of events leading to rupture of the drive arm of the IP Turbine (IPT) disc and subsequent overspeed and burst of that same disc.
Rolls-Royce has developed a modification of the Engine Electronic Controller (EEC) software, featuring an IPT Overspeed Protection System (IPTOS). The purpose of the IPTOS functionality is to detect engine conditions that may potentially lead to an IP turbine overspeed, and shut down the engine before the level of overspeed reaches the disc burst speed.
Rolls-Royce plc has issued Trent 900 Series Propulsion Systems Alert Service Bulletin No. RB.211-73-AG639, dated December 3, 2010. 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 the United Kingdom, and is approved for operation in the United States. Pursuant to our bilateral agreement with the United Kingdom, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the EASA, and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
Since no domestic operators use this product, notice and opportunity for public comment before issuing this AD are unnecessary. Therefore, we are adopting this regulation immediately.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective April 4, 2011.
(b) None.
(c) This AD applies to RR model RB211-Trent 970-84, 970B-84, 972-84, 972B-84, 977-84, 977B-84, and 980-84 turbofan engines. These engines are installed on, but not limited to, Airbus A380 series airplanes.
(d) An uncontained engine failure has recently occurred on a Rolls-Royce RB211 Trent 900 involving release of high energy debris and resulting in damage to the aeroplane. Analysis of the available elements from the incident investigation shows that an oil fire in the High Pressure/Intermediate Pressure (HP/IP) structure cavity may have initiated a sequence of events leading to rupture of the drive arm of the IP Turbine (IPT) disc and subsequent overspeed and burst of that same disc.
Rolls-Royce has developed a modification of the Engine Electronic Controller (EEC) software, featuring an IPT Overspeed Protection System (IPTOS). The purpose of the IPTOS functionality is to detect engine conditions that may potentially lead to an IP turbine overspeed, and shut down the engine before the level of overspeed reaches the disc burst speed.
(e) Unless already done, do the following actions:
(1) Within 10 flight cycles after the effective date of this AD, incorporate software 10.6 to the EEC.
(2) Guidance on incorporating software 10.6 can be found in Rolls-Royce plc Trent 900 Series Propulsion Systems Alert Service Bulletin (SB) No. RB.211-73-AG639, dated December 3, 2010.
(3) After incorporation of software 10.6, do not incorporate any software version prior to 10.6 to the EEC.
(f) This AD differs from the Mandatory Continuing Airworthiness Information (MCAI) as follows:
(1) MCAI European Aviation Safety Agency (EASA) AD 2010-0262, dated December 13, 2010, requires that after EEC modification of an installed engine as required by that AD, do not intermix with any EEC software standards prior to modification 73-F328 (standard 9.2.1) on that airplane. This AD does not, because there are no U.S. registered airplanes with RB211-Trent 900 engines.
(2) MCAI EASA AD 2010-0262, dated December 13, 2010, states that from the effective date of the AD, no engine may be installed in an airplane unless the engine has incorporated the new software. This AD does not, because there are no U.S. registered airplanes with RB211-Trent 900 engines.
(3) MCAI EASA AD 2010-0262, dated December 13, 2010, allows incorporation of later approved versions of EEC software standards that will include IPTOS functionality. This AD does not. Instead, we prohibit software installation prior to version 10.6.
(g) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(h) Refer to MCAI EASA AD 2010-0262, dated December 13, 2010, and Rolls-Royce plc Trent 900 Series Propulsion Systems Alert SB No. RB.211-73-AG639, dated December 3, 2010, for related information.
(i) Contact Rolls-Royce plc, P.O. Box 31, Derby, DE24 8BJ, United Kingdom;
(j) Contact Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803;
(k) None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Newport, Vermont. The Newport Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures (SIAPs) have been developed for Newport State Airport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
On November 29, 2010, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface to support new SIAPs developed at Newport State Airport, Newport, Vermont. Airspace reconfiguration is necessary due to the decommissioning of the Newport NDB and cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) Is not a “significant regulatory action” under
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Newport, Vermont.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Newport State Airport and within 1.8 miles each side of the 159° bearing from the airport extending from the 6.4-mile radius to 10.9 miles south of Newport State Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E Airspace at Wolfeboro, NH, to accommodate a new Area Navigation (RNAV) Global Positioning System (GPS) special Instrument Approach Procedure (SIAP) serving Huggins Hospital Heliport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations within the National Airspace System.
Effective 0901 UTC, June 30, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
On December 28, 2010, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes the Class E airspace extending upward from 700 feet above the surface at Wolfeboro, NH, to provide controlled airspace required to support the RNAV (GPS) special standard instrument approach procedures developed for Huggins Hospital Heliport. This action is necessary for the safety and management of IFR operations at the heliport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Wolfeboro, NH.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6-mile radius of the Point in Space Coordinates (lat. 43°35′15″ N., long. 71°11′19″ W.) serving Huggins Hospital Heliport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E Airspace at Colebrook, NH, to accommodate a new Area Navigation (RNAV) Global Positioning System (GPS) special Standard Instrument Approach Procedure (SIAP) serving the Upper Connecticut Valley Hospital Heliport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations within the National Airspace System.
Effective 0901 UTC, June 30, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
On December 28, 2010, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes the Class E airspace extending upward from 700 feet above the surface at Colebrook, NH, to provide controlled airspace required to support the RNAV (GPS) special standard instrument approach procedures developed for Upper Connecticut Valley Hospital Heliport. This action is necessary for the safety and management of IFR operations at the heliport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Colebrook, NH.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward From 700 Feet above the surface within a 6-mile radius of the Point in Space Coordinates (lat. 44°54′26″ N., long. 71°29′54″ W.) serving the Upper Connecticut Valley Hospital Heliport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E Airspace at Lancaster, NH, to accommodate a new Area Navigation Global Positioning System RNAV special Standard Instrument Approach Procedure (SIAP) serving the Weeks Medical Center Heliport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations within the National Airspace System.
Effective 0901 UTC, June 30, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P. O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
On December 28, 2010, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes the Class E airspace extending upward from 700 feet above the surface at Lancaster, NH, to provide controlled airspace required to support the special standard instrument approach procedures developed for Weeks Medical Center Heliport. This action is necessary for the safety and management of IFR operations at the heliport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Lancaster, NH.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6-mile radius of the Point in Space Coordinates (lat. 44°29'33”N., long. 71°34'41”W.) serving the Weeks Medical Center Heliport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action will modify Class E airspace at Bryce Canyon, UT. Additional controlled airspace is necessary to accommodate aircraft using Area Navigation (RNAV) Global
Effective date, 0901 UTC, June 30, 2011. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4537.
On December 9, 2010, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace for the Bryce Canyon, UT area, adding additional controlled airspace extending upward from 700 feet above the surface to accommodate IFR aircraft executing RNAV (GPS) standard instrument approach procedures at Bryce Canyon Airport. This action is necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes additional controlled airspace at Bryce Canyon Airport, Bryce Canyon, UT.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within 8 miles each side of the 047° and 227° bearing from the airport, extending 18 miles northeast and 15.9 miles southwest of the airport. That airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 38°21′00″ N., long. 112°34′00″ W.; to lat. 38°21′00″ N., long. 112°24′00″ W.; to lat. 38°12′00″ N., long. 112°15′00″ W.; to lat. 38°20′00″ N., long. 111°56′00″ W.; to lat. 38°18′00″ N., long. 111°41′00″ W.; to lat. 38°00′00″ N., long. 111°34′00″ W.; to lat. 37°45′00″ N., long. 111°02′00″ W.; to lat. 37°17′00″ N., long. 111°18′00″ W.; to lat. 37°19′00″ N., long. 111°48′00″ W.; to lat. 37°22′00″ N., long. 112°14′00″ W.; to lat. 37°13′00″ N., long. 112°33′00″ W.; to lat. 37°14′00″ N., long. 112°39′00″ W.; to lat. 37°29′00″ N., long. 112°42′00″ W.; to lat. 37°41′00″ N., long. 112°53′00″ W.; thence to point of origin.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Fifth Coast Guard District, has issued a temporary deviation from the regulations governing the operation of the Townsends Inlet Bridge across, mile 0.3, at Avalon, NJ. The deviation is necessary to facilitate the cleaning and painting of the structure. This deviation allows the bridge to remain in the closed position for the deviation period.
This deviation is effective from 5 a.m. on March 1, 2011 to 5 p.m. on April 30, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0079 and are available online by going to
If you have questions on this rule, call or e-mail Mr. Terrance A. Knowles, Environmental Protection Specialist, Fifth District; Coast Guard; telephone 757-398-6587, e-mail
The Cape May County Bridge Commission (CMCBC), who owns and operates this bascule drawbridge, has requested a temporary deviation from the current operating schedule to facilitate the cleaning and painting of the bridge structure. Under the regular operating schedule required by 33 CFR 117.757, the bridge opens on signal, except from 9:15 a.m. to 2:30 p.m. on the fourth Sunday in March of every year, the draw need not open for vessels. If the fourth Sunday falls on a religious holiday, the draw need not open from 9:15 a.m. to 2:30 p.m. on the third Sunday of March of every year. From 11 p.m. on December 24 until 11 p.m. on December 25, the draw need open only if at least two hours notice is given.
The Townsend Inlet Bridge, mile 0.3, in Avalon, NJ, has a vertical clearance in the closed position of 23 feet above mean high water. Vessels that can transit under the bridge without an opening may do so at any time. Under this temporary deviation, CMCBC will maintain the bridge in the closed position to vessels beginning at 5 a.m. on March 1, 2011 until and including 5 p.m. on April 30, 2011.
In 2010, during the months of March and April, the bridge has opened for vessels 62 and 45 times, respectively. The majority of the vessels for which the bridge opened were tugs and barges being used for beach replenishment.
The Coast Guard will inform users of the waterway through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
Vessels have two alternate routes by transiting either eight miles to the south through Hereford Inlet or eight miles to the north through Corson Inlet. The drawbridge will be able to open in the event of an emergency.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the SR127 Bridge at mile 0.0 across the Annisquam River and Blynman Canal. The deviation is necessary to facilitate a public event, the Yucan One-Mile Road Race, which will cross the SR127 Bridge. This deviation allows the bridge to remain in the closed position during the deviation period.
This deviation is effective from 8:45 a.m. through 10 a.m. on April 9, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0150 and are available online at
If you have questions on this rule, call or e-mail Mr. John McDonald, Project Officer, First Coast Guard District,
The SR127 Bridge, across the Annisquam River/Blynman Canal, mile 0.0, at Gloucester, Massachusetts, has a vertical clearance in the closed position of 7 feet at mean high water and 16 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.586.
The owner of the bridge, Massachusetts Department of Transportation, requested a temporary deviation from the regulations to facilitate the Yucan One-Mile Road Race which will pass across the SR127 Bridge.
Under this temporary deviation the SR127 Bridge may remain in the closed position between 8:45 a.m. and 10 a.m. on April 9, 2011. Vessels that can pass under the bridge in the closed position may do so at any time.
The Gloucester Harbor Master and the local marinas were notified and no objections were received.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Hall Whitaker Bridge at mile 0.6 across the Bass River
This deviation is effective from 6 p.m. on March 25, 2011 through 6 p.m. on March 27, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0149 and are available online at
If you have questions on this rule, call or e-mail Mr. John McDonald, Project Officer, First Coast Guard District,
The Hall Whitaker Bridge, across the Bass River at Beverly, Massachusetts, has a vertical clearance in the closed position of 5 feet at mean high water and 14 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.588.
The owner of the bridge, Massachusetts Department of Transportation, requested a temporary deviation from the regulations to facilitate emergency repairs at the bridge. A routine structural inspection revealed deterioration on two steel floor beams at the bridge. The two beams must be replaced as soon as possible in the interest of public safety.
Under this temporary deviation the Hall Whitaker Bridge may remain in the closed position from 6 p.m. on March 25, 2011 through 6 p.m. on March 27, 2011. Vessels that can pass under the bridge in the closed position may do so at any time.
The Beverly Harbor Master and the local marinas were notified and no objections were received.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Due to an adverse comment, EPA is withdrawing the direct final rule to approve revisions to Virginia's State Implementation Plan (SIP). These SIP revisions add the primary and secondary lead standards of 0.15 micrograms per cubic meter (μg/m3), related reference conditions, and update the list of appendices under “Documents Incorporated by Reference.” In the direct final rule published on January 26, 2011 (76 FR 4537), we stated that if we received any adverse comments by February 25, 2011, the rule would be withdrawn and would not take effect. EPA received an adverse comment within the comment period. EPA will address the comment received in a subsequent final action based upon the proposed action also published on January 26, 2011 (76 FR 4579). EPA will not institute a second comment period on this action.
The direct final rule published at 76 FR 4537, January 26, 2011, is withdrawn as of March 18, 2010.
EPA has established docket number EPA-R03-OAR-2010-0882 for this action. The index to the docket is available electronically at
Irene Shandruk, (215) 814-2166, or by e-mail at
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Accordingly, the amendments to the table in 40 CFR 52.2420, published on January 26, 2011 (76 FR 4537) on page 4539 is withdrawn as of March 18, 2011.
Environmental Protection Agency (EPA).
Final Rule.
The EPA is taking final action to determine that the Boston-Manchester-Portsmouth (SE), New Hampshire moderate 1997 8-hour ozone nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. This determination is based upon complete, quality-assured, certified ambient air monitoring data that show the area has monitored attainment of the 1997 8-hour ozone NAAQS for the 2007-2009 monitoring period. Preliminary data available for the 2010 ozone season is consistent with continued attainment. Under the provisions of EPA's ozone implementation rule, the requirements for this area to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans related to attainment of the 1997 8-hour ozone NAAQS shall be suspended for so long as the area continues to attain the 1997 ozone NAAQS. In addition, EPA is taking final action to determine that this area has attained the 1997 ozone NAAQS as of June 15, 2010, its applicable attainment date.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2010-0934. All documents in the docket are listed on the
Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-3912, telephone number (617) 918-1664, fax number (617) 918-0664, e-mail
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble.
EPA is taking final action to determine that the Boston-Manchester-Portsmouth (SE), New Hampshire moderate 8-hour ozone nonattainment area has attained the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). This determination is based upon complete, quality-assured and certified ambient air monitoring data that show the area has monitored attainment of the 1997 ozone NAAQS for the 2007-2009 monitoring period. In addition, preliminary data for 2010 shows this area continues to meet the 1997 ozone NAAQS.
Based on the air quality data cited above, EPA is also taking final action to determine, under section 181(b)(2)(A) of the Clean Air Act (CAA), that this area has attained the 1997 ozone NAAQS by its applicable attainment date (June 15, 2010).
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA again addressed this 2008 revised standard and proposed to set the primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA is working to complete reconsideration of the standard. If EPA establishes a new primary ozone standard as a result of the reconsideration, it would fully replace the standard set in 2008. Thus, implementation requirements for the 2008 standard would no longer apply. EPA would then proceed with designations with respect to the new standard. Today's rulemaking relates only to the 1997 8-hour ozone standard and is not affected by the ongoing process of reconsidering the revised 2008 standard. This action addresses only the 1997 8-hour ozone standard of 0.08 ppm, and does not address any subsequently revised 8-hour ozone standard.
Other specific details related to the determinations and the rationale for EPA's final actions are explained in the Notice of Proposed Rulemaking (NPR) for these actions published on December 6, 2010 (75 FR 75656) and will not be restated here. No comments were received on the NPR.
The effect of this action is to reaffirm EPA's prior determination of attainment for this area (
Under the provisions of EPA's ozone implementation rule (
This action does not constitute a redesignation to attainment under CAA section 107(d)(3), because the area does not have an approved maintenance plan as required under section 175A of the CAA, nor a determination that the area has met the other requirements for redesignation. The classification and designation status of the area remains moderate nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that it meets the CAA requirements for redesignation to attainment. If EPA subsequently determines, after notice-and-comment rulemaking in the
In addition, in accordance with CAA section 181(b)(2)(A), EPA is determining that the Boston-Manchester-Portsmouth (SE), New Hampshire 1997 8-hour ozone nonattainment area has attained the 1997 ozone NAAQS by its applicable attainment date of June 15, 2010. The effect of this determination of attainment by the area's attainment date is to discharge EPA's obligation under section 181(b)(2)(A), and to establish that, in accordance with that section, the area will not be reclassified for failure to attain by its applicable attainment date.
EPA is determining that the Boston-Manchester-Portsmouth (SE), New Hampshire 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard based on three years of complete, quality-assured and certified ozone monitoring data from 2007-2009. Preliminary data available for 2010 are consistent with continued attainment. As provided in 40 CFR 51.918, this determination suspends the requirements for New Hampshire to submit an attainment demonstration, a reasonable further progress plan, contingency measures under section 172(c)(9), and any other planning SIP related to attainment of the 1997 8-hour ozone NAAQS for this area, for so long as the area continues to attain the 1997 ozone standard. In addition, pursuant to CAA section 181(b)(2)(A), EPA is determining that the Boston-Manchester-Portsmouth (SE), New Hampshire 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS by its applicable attainment date (June 15, 2010).
These actions make a determination of attainment based on air quality, and result in the suspension of certain Federal requirements, and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:
• Are not “significant regulatory actions” subject to review by the Office
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 17, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(e) Determination of Attainment. Effective April 18, 2011, EPA is determining that the Boston-Manchester-Portsmouth (SE), New Hampshire 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard based on 2007-2009 monitoring data. Under the provisions of EPA's ozone implementation rule (
Environmental Protection Agency (EPA).
Direct final rule.
EPA is amending certain regulations to reflect the current delegation status of national emission standards for hazardous air pollutants (NESHAP) in Arizona and California. Several NESHAP were delegated to the Maricopa County Air Quality Department and the Santa Barbara County Air Pollution Control District within the past 12 months. The purpose of this action is to update the listing in the Code of Federal Regulations.
This rule is effective on May 17, 2011 without further notice, unless EPA receives adverse comments by April 18, 2011. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA-R09-OAR-2011-0213, by one of the following methods:
1.
2.
3.
Mae Wang, EPA Region IX, (415) 947-4124,
Throughout this document, “we,” “us” and “our” refer to EPA.
Section 112(l) of the Clean Air Act, as amended in 1990 (CAA), authorizes EPA to delegate to State or local air pollution control agencies the authority to implement and enforce the standards set out in the Code of Federal Regulations, Title 40 (40 CFR), Part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories. On November 26, 1993, EPA promulgated regulations, codified at 40 CFR Part 63, Subpart E (hereinafter referred to as “Subpart E”), establishing procedures for EPA's approval of State rules or programs under section 112(l) (
Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and Subpart E. To streamline the approval process for future applications, a State or local agency may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the State or local agency would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program.
On March 2, 2000, EPA published a direct final action delegating to the Maricopa County Air Quality Department (Maricopa County) several NESHAP and approving Maricopa County's delegation mechanism for future standards (
On May 6, 2010, EPA granted delegation to Maricopa County for these NESHAP, along with any amendments to previously-delegated NESHAP, as of July 1, 2008. Subsequently, on October 7, 2010, Maricopa County requested delegation of the following NESHAP contained in 40 CFR Part 63:
On December 14, 2010, EPA granted delegation to Maricopa County for these NESHAP, along with any amendments to previously-delegated NESHAP, as of July 1, 2009. Today's action is serving to notify the public of the May 6, 2010, and December 14, 2010, delegations and to codify these delegations into the Code of Federal Regulations.
On October 6, 2003, the California Air Resources Board (CARB) submitted on behalf of nine California districts a request for delegation of all Federal section 112 standards that apply to area sources, with the exception of the dry cleaning and chromium electroplating
On April 1, 2010, the Santa Barbara County Air Pollution Control District (Santa Barbara County) asked CARB to make a delegation request on their behalf for CAA section 112 area source standards. CARB submitted the request on behalf of the district on May 20, 2010. On July 30, 2010, EPA Region IX approved this request by letter, granting the Santa Barbara County the authority to implement and enforce existing area source standards unchanged as promulgated by EPA.
Today's document serves to notify the public of the delegation of NESHAP to Maricopa County on May 6, 2010, and December 14, 2010. Today's action will codify these delegations into the CFR.
This document serves to notify the public that, with the exception of the dry cleaning and chromium electroplating standards, EPA granted delegation of unchanged Federal section 112 area source standards to Santa Barbara County on July 30, 2010. Today's action will codify these delegations into the CFR. Santa Barbara County will also receive delegation of any future area source standards or revisions 90 days after promulgation of these standards or revisions, unless the district chooses to decline delegation of a particular future standard by notifying the EPA Region IX office in writing. If no such notification is received, the delegation will go into effect 90 days after promulgation of the standard or revision, without any additional action from the district or EPA. Additionally, as mentioned in 74 FR 12591 (March 25, 2009), and pursuant to 40 CFR sections 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA Region IX waives the requirement that notifications or reports for delegated area source standards be submitted to EPA as well as Santa Barbara County.
Under the CAA, the Administrator is required to approve delegation requests that comply with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7412(l); 40 CFR 63.91(b). Thus, in reviewing delegation submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the delegations are not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 17, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
This action is issued under the authority of Section 112 of the Clean Air Act, as amended, 42 U.S.C. 7412.
Title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(a) * * *
(3) * * *
(i) * * *
(5) * * *
(i) * * *
(B) * * *
(
(
(
In rule document 2011-2269 appearing on pages 6056-6066 in the issue of Thursday, February 3, 2011, make the following corrections:
Environmental Protection Agency (EPA).
Final rule.
EPA is promulgating this final rule to extend until September 30, 2011 the reporting deadline for year 2010 data required under the Mandatory Reporting of Greenhouse Gases Rule. This deadline extension will, in the first year of the Greenhouse Gas Reporting Program, allow time for needed refinement of the electronic data reporting system, stakeholder testing of the reporting system and feedback to EPA, and reporter access to the reporting system in advance of the reporting deadline. This rule changes only the deadline for reporting for 2011; it does not change the reporting deadline for future years and does not change what data must be reported.
This final rule is effective on March 18, 2011.
Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC-6207J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9263; fax number: (202) 343-2342; e-mail address:
Table 1 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Types of facilities other than those listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subparts C through PP, excluding subparts I, J, L, M, T, W, DD, FF, II, JJ, and KK. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the preceding
On October 30, 2009, EPA published the Mandatory GHG Reporting Rule (40 CFR part 98) for collecting information regarding GHGs from a broad range of industry sectors (74 FR 56260). Under 40 CFR part 98 (hereinafter referred to as “Part 98”) and its subsequent amendments, EPA is collecting data from certain facilities and suppliers. The data to be reported consists of GHG emissions information as well as other data, including information necessary to characterize, quantify, and verify the reported emissions. For reporters required to submit 2010 GHG data under Part 98, the original reporting deadline was March 31, 2011.
As explained in the preamble to the 2009 reporting rule, the GHG Reporting Program requires electronic reporting through a centralized data system (40 CFR 98.5). Electronic reporting facilitates efficient and effective review of the large volume of data anticipated to be reported. The data system, called the Electronic Greenhouse Gas Reporting Tool (e-GGRT), guides reporters through registration and provides an option for reporting using step-by-step Web forms or through bulk transmission of data using a standard extensible markup language (XML) format. Development of the reporting tool has involved translating the detailed industry-specific reporting requirements of Part 98 into a user-friendly software program. The registration module of the tool has been available since December 2010. EPA has been developing the subpart reporting modules since the final requirements for Part 98 were issued.
Since the final rule establishing Part 98 was published in October 2009, we have published several rule amendments. These include addition of facility- and parent-level reporting requirements (75 FR 57669, September 22, 2010); technical corrections and other amendments (75 FR 66434, October 28, 2010); changes partially in response to petitions for review and reconsideration (75 FR 79092, December 17, 2010); and interim changes in response to industry concerns about potential public availability of sensitive data (75 FR 81338, December 27, 2010). Though e-GGRT development began in 2009, each amendment or addition to the Part 98 reporting requirements has also necessitated changes to the data reporting system.
In the preamble to Part 98, we described our intention to make the electronic reporting system, along with training and instructional materials, available to reporters before the reporting deadline. (
To that end, EPA is issuing this final rule extending the Part 98 reporting deadline in the first year of the reporting program to allow time for needed data system refinement, stakeholder testing of the data system and feedback to EPA, and reporter access to e-GGRT in advance of the reporting deadline.
This action affects only reporters that are subject to the source category-specific reporting requirements in 40 CFR part 98, subparts C through PP, excluding subparts I, J, L, M, T, W, DD, FF, II, JJ, and KK. This includes only reporters covered by the Part 98 subparts published on October 30, 2009, which require these facilities and suppliers to begin monitoring emissions on January 1, 2010 and to submit their first annual GHG report (covering calendar year 2010 emissions) by March 31, 2011. The list of affected source categories is provided in Table 2 of this preamble.
This amendment to Part 98 extends the regulatory deadline for reporters to report their 2010 GHG data from the current regulatory deadline of March 31, 2011 until September 30, 2011. This deadline extension includes the reporting deadline for those data elements used as inputs to emission equations, which was deferred in the Interim Final Regulation Deferring the Reporting Date for Certain Data Elements Required Under the Mandatory Reporting of Greenhouse Gases Rule (75 FR 81338, December 27, 2010). Because the regulatory deadline for reporters of 2010 GHG data to register in e-GGRT by submitting a certificate of representation is at least 60 days before the reporting deadline (40 CFR 98.4(d)), this reporting deadline extension also has the effect of extending the registration deadline to at least 60 days before September 30, 2011. This rule also corrects a typographical error in 40 CFR part 98.3 by redesignating the second paragraph (c)(4)(vi) as paragraph (c)(4)(viii). This final rule does not change any other requirements of Part 98 or extend the reporting deadline for future years.
EPA has determined that an extension of the deadline for reporting 2010 GHG data under Part 98 is necessary to help successfully implement the reporting tool and improve reporting and data quality in the first year of the program. EPA deems this reporting deadline extension necessary to allow EPA to test and refine e-GGRT more extensively; give stakeholders the opportunity to test the tool and provide feedback to EPA, allowing us to further refine the tool and better tailor our training and outreach; and give reporters time to become familiar with the tool in advance of the reporting deadline, improving their reporting experience and the quality of the reported data.
EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions of section 553 through 557 * * * of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) or (B) of subsection 553(b) of Title 5.” Consistent with this language, EPA is using the good cause exemption under the Administrative Procedure Act (APA) to take the actions set forth in this final rule without prior notice and comment.
As explained below, EPA finds good cause to take the actions set forth in this final rule without prior notice and comment because providing prior notice and comment would be impracticable, unnecessary, and contrary to the public interest. Notice and comment on this short deadline extension are impracticable, as EPA likely would not be able to complete a notice and comment rulemaking for a deadline extension before the original March 31, 2011 reporting deadline, thus defeating the purpose of undertaking such a rulemaking. As described in Section I of
Further, given the short period of time that this final rule will extend the reporting deadline, and the fact that this rule will extend the deadline only for 2010 data, EPA considers soliciting public comment on this final rule to be unnecessary. This final rule simply provides the Agency with brief additional time to engage stakeholders in testing, incorporate feedback, and make final improvements to the Part 98 electronic reporting tool, as well as to give reporters time to become familiar with the tool in advance of the reporting deadline in the first year of the program. EPA's intent to publish non-confidential 2010 data by the end of 2011 remains unchanged.
EPA also considers soliciting public comment on this final rule, which likely would prevent the rule from being finalized in time to extend the reporting deadline by March 31, 2011, to be contrary to the public interest. EPA is briefly extending the deadline for reporting 2010 data to allow EPA to solicit additional stakeholder feedback and make final improvements to the electronic data reporting tool that are important to the success of the reporting program. These adjustments will improve the tool, improve user experience with the tool and with the reporting program, and ultimately provide higher quality greenhouse gas emissions data to EPA and to the public. Further, even if EPA could complete a notice and comment deadline extension before March 31, 2011, the risk that we would not be able to complete such a rulemaking before the original reporting deadline would create regulatory uncertainty. EPA thus finds good cause to briefly extend the reporting deadline without notice and comment.
EPA is also using the APA's good cause exemption to make this final rule effective on March 18, 2011.
Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” As explained below, EPA finds that there is good cause for this rule to become effective on March 18, 2011, even though this results in an effective date fewer than 30 days from date of publication in the
The purpose of the 30-day waiting period prescribed in APA section 553(d) is to give affected parties a reasonable time period to adjust their behavior and prepare before the final rule takes effect. This final rule extends a reporting deadline, requiring little preparation or behavior adjustment. A shorter effective date in such circumstances is consistent with the purposes of APA section 553(d), which provides an exception for any action that grants or recognizes an exemption or relieves a restriction. Further, APA section 553(d)(3) provides that if the issuing agency has made a finding of good cause and published its reasoning with the rule, the rule may take effect sooner than 30 days. EPA has determined that good cause exists to extend the reporting deadline for 2010 data until September 30, 2011 in this final rule without prior notice and comment, because prior notice and comment would be impracticable, unnecessary, and contrary to the public interest for the reasons stated above. Accordingly, we find that good cause exists to make this rule effective on March 18, 2011, consistent with the purposes of APA section 553(d)(3).
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.
This action does not impose any new information collection burden. This final rule extends the reporting deadline for 2010 data, so it does not increase the reporting burden. However, OMB has previously approved the information collection requirements contained in the regulations promulgated on October 30, 2009, under 40 CFR part 98 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the effects of this rule on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently
After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The rule will not impose any new requirements on small entities that are not currently required by Part 98.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
The amendment to 40 CFR part 98 does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The amendment only postpones the reporting date for 2010 data under Part 98, so it does not increase the costs for facilities to comply with Part 98. Thus, the action is not subject to the requirements of sections 202 or 205 of UMRA.
In developing Part 98, EPA consulted with small governments pursuant to a plan established under section 203 of UMRA to address effects of regulatory requirements in the rule that might significantly or uniquely affect small governments. For a summary of EPA's consultations with State and/or local officials or other representatives of State and/or local governments in developing Part 98, see Section VIII.D of the preamble to the final rule (74 FR 56370, October 30, 2009).
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. However, for a more detailed discussion about how Part 98 relates to existing State programs, please see Section II of the preamble to the final rule (74 FR 56266, October 30, 2009).
This amendment applies to facilities that emit or supply greenhouses gases. It does not apply to government entities unless a government entity owns a facility that directly emits greenhouse gases above threshold levels (such as a landfill), so relatively few government facilities would be affected. This regulation also does not limit the power of States or localities to collect GHG data and/or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this action. For a summary of EPA's consultation with State and local organizations and representatives in developing Part 98,
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does not result in any changes to the requirements of Part 98 other than postponing the reporting deadline for 2010 GHG data until September 30, 2011. Thus, Executive Order 13175 does not apply to this action. For a summary of EPA's consultations with tribal governments and representatives,
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The amendment addresses only reporting procedures.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Greenhouse gases, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, Chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(b)
(c) * * *
(4) * * *
(vii) The owner or operator of a facility is not required to report the data elements specified in Table A-6 of this subpart for calendar year 2010 until September 30, 2011.
(d) * * *
(3)
In Title 46 of the Code of Federal Regulations, Parts 1 to 40, revised as of October 1, 2010, on page 254, in § 16.105, in the definition of
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This notice proposes special conditions for the Boeing Model 747-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include a stairway between the main deck and upper deck. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing 747-8 airplanes.
Comments must be received on or before May 2, 2011.
Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM450, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NMXX. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2194; facsimile (425) 227-1232.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposed special conditions based on comments we receive.
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On November 4, 2005, The Boeing Company, PO Box 3707, Seattle, WA, 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 series passenger airplane. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 975,000 pounds, new General Electric GEnx -2B67 engines, and the capacity to carry 605 passengers.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 (hereafter referred as 747-8) meets the applicable provisions of part 25, Amendments 25-1 through 25-120, plus amendment 25-127 for § 25.795(a), except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8.
In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these proposed special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these airplanes.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model or series that incorporates the same or similar novel or unusual design feature, or should any other model or series already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model or series under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.
The Boeing Model 747-8 will incorporate the following novel or unusual design features: The 747-8 design offers seating capacity on two separate decks: The main deck with a maximum passenger capacity of 495 and the upper deck with a maximum
The regulations governing the certification of the 747-8 do not adequately address the certification requirements for a two-deck passenger airplane. The Airbus A380-800 and all of the earlier Boeing 747 passenger airplane models were certified with seating capacity on two separate decks. When the seating capacity of the upper deck of the Boeing 747 exceeded 24 passengers, the FAA issued Special Condition No. 25-61-NW-1 for a maximum seat capacity of 32 passengers on the upper deck for take-off and landing. A second set of special conditions, Special Condition No. 25-71-NW-3, was issued to include airplanes up to a maximum seating capacity of 45 passengers on the upper deck for take-off and landing. The second set of special conditions was modified to address airplanes with a maximum seating capacity of 110 passengers on the upper deck for take-off and landing. Special Conditions No. 25-326-SC for the Airbus A380-800 allowed a seating capacity on two separate decks: The main deck with a maximum passenger capacity of 542 and the upper deck with a maximum passenger capacity of 308. Although these previously issued special conditions for the A380-800 provided a starting point for developing the 747-8 special conditions, the proposed 747-8 special conditions are specific to the unique aspects of this airplane's design.
The regulations do not adequately address a passenger airplane with separate decks for passenger occupancy, thus the FAA considers this to be a novel design. Therefore, the FAA is proposing that special conditions, in addition to the requirements of §§ 25.803 and 25.811 through 25.813, are required to address the proposed design.
As discussed above, these proposed special conditions are applicable to Boeing Model 747-8 airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features of the Boeing Model 747-8 airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these Special Conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Boeing 747-8 airplanes.
1. The stairway must have essentially straight route segments with a landing at each significant change in segment direction.
2. The stairway must have essentially rectangular treads.
3. With the airplane in level attitude and in each attitude resulting from the collapse of one or more legs of the landing gear, the stairway must have entrance, exit, and gradient characteristics that allow the upper deck passengers, with assistance from a crewmember, to merge with passengers on the main deck during an emergency evacuation and exit the airplane through a main deck exit. This must be shown by demonstration, tests, analysis, or any combination thereof.
4. The stairway must accommodate the carriage of an incapacitated occupant from the upper deck to the main deck. The crewmember procedures for such carriage must be established and included in the airplane flight manual.
5. The stairway must be located to provide occupants an adequate descent rate under probable emergency conditions, including a condition in which an occupant falls or is incapacitated while on the stairway.
6. The stairway must be designed and located to minimize damage to its structure during an emergency landing or ditching.
7. General illumination must be provided so, when measured along the center lines of each tread and landing, the illumination is not less than 0.05 foot-candle. This is in lieu of compliance with § 25.812(c), at Amendment 25-116.
8. Means must be provided to assist passengers in locating the stairway in dense smoke conditions as part of compliance with § 25.811(c), at Amendment 25-88.
9. An emergency exit sign meeting § 25.812(b)(1)(i), at Amendment 25-116, must be provided in the upper deck near the stairway visible to passengers approaching along the main aisle as required by § 25.811(d)(1), at Amendment 25-88.
10. Floor proximity lighting required by § 25.812(e), at Amendment 25-120, must be provided along the stairs.
11. When passengers occupy the upper deck, at least one flight attendant must also be present during taxi, take-off, and landing.
12. The stairway must have a handrail on at least one side to allow occupants to steady themselves during foreseeable conditions, including but not limited to, gear collapse on the ground and moderate turbulence in flight. The handrail(s) must be constructed so there is no obstruction on them that will cause the user to release his/her grip or hinder the continuous movement of the hands along the handrail. Handrail(s) must be terminated in a manner that will not interfere with occupants walking by or create a hazard (such as catching clothing). Boeing must demonstrate that the design can accommodate the stature of a fifth percentile female and a ninety-fifth percentile male.
13. The public address system must be intelligible in the stairway during all flight phases.
14. “No smoking” and “return to seat” signs must be installed and visible in the stairway both going up and down and at the stairway entrances.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to Amend Class E Airspace at Waynesboro,
0901 UTC. Comments must be received on or before May 2, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2010-1232; Airspace Docket No. 10-AEA-28, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2010-1232; Airspace Docket No. 10-AEA-28) and be submitted in triplicate to the Docket Management System (
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-1232; Airspace Docket No. 10-AEA-28.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to create additional Class E airspace at Waynesboro, VA to accommodate new standard instrument approach procedures developed for Eagle's Nest Airport. Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish additional airspace for the Waynesboro, VA Class E airspace area.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.2 mile radius of Eagle's Nest Airport and within 2 miles either side of the 052° course to the airport and extending from the 6.2-mile radius to 15.1 miles southwest of the airport and within 2 miles either side of the 232° course to the airport and extending from the 6.2-mile radius to 15.1 miles northeast of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Shenandoah Valley Regional Airport, Staunton, VA. The Bridgewater Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures have been developed for the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before May 2, 2011.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2010-1285; Airspace Docket No. 10-AEA-27, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Comments should identify both docket numbers (FAA Docket No. FAA-2010-1285; Airspace Docket No. 10-AEA-27) and be submitted in triplicate to the Docket Management System (
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-1285; Airspace Docket No. 10-AEA-27.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface at Shenandoah Valley Regional Airport, Staunton, VA, to provide controlled airspace required to support new standard instrument approach procedures for Shenandoah Valley Regional Airport. This action is necessary for the safety and management of IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of the Shenandoah Valley Regional Airport and within 4 miles either side of the 038° course to the airport extending from the 7.6-mile radius to 16.4 miles southwest of the airport and within 4 miles either side of the 218° course to the airport extending from the 7.6-mile radius to 13.5 miles northeast of the airport and within a 8.3-mile radius of the Bridgewater Air Park and within 4 miles either side of the 323° course to the airport extending from the 8.3-mile radius to 11.6 miles southeast of the airport and within 1.5 miles either side of the 158° course to the airport extending from the 8.3-mile radius to 10 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Kenbridge, VA, to accommodate the additional airspace needed for the Standard Instrument Approach Procedures (SIAPs) developed for Lunenburg County Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before May 2, 2011.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001;
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0160; Airspace Docket No. 11-AEA-05) and be submitted in triplicate to the Docket Management System (
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0160; Airspace Docket No. 11-AEA-05.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Kenbridge, VA to provide controlled airspace required to support the SIAPs developed for Lunenburg County Airport. Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Lunenburg County Airport, Kenbridge, VA.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of the Lunenburg County Airport and within 4 miles each side of the 024° bearing from the airport extending from the 6.8 mile radius to 8.8 miles NE of the airport and within 4 miles each side of the 204° bearing extending from the 6.8 mile radius to 10 miles southwest of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Brunswick, ME, to accommodate new Standard Instrument Approach Procedures developed for Brunswick Executive Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
0901 UTC. Comments must be received on or before May 2, 2011.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2011-0116; Airspace Docket No. 11-ANE-01, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0116; Airspace Docket No. 11-ANE-1) and be submitted in triplicate to the Docket Management System (
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0116; Airspace Docket No. 11-ANE-1.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Brunswick, ME to provide airspace required to support the standard instrument approach procedures developed for the new Brunswick Executive Airport (BXM).The Brunswick Executive Airport uses the same facilities as the former Brunswick Naval Air Station (NAS). This Class E airspace, therefore, covers largely the same airspace encompassed by the controlled airspace area that was defined for the former Brunswick NAS and was removed in September 2010 upon closure of the NAS. See, 75 FR 57848, Docket No. FAA-2010-0248. This new Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations conducted to and from the new BXM airport and the new standard instrument approach procedures (SIAPs) developed for that airport.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Brunswick Executive Airport, Brunswick, ME.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within an 8 mile radius of the Brunswick Executive Airport.
Commodity Futures Trading Commission.
Notice of proposed rulemaking; extension of comment period.
The Commodity Futures Trading Commission (“Commission”) is extending the comment period for proposed regulation 38.502(a) (“Minimum Centralized Market Trading Percentage Requirement”), in light of the recent public release of the off-market volume data referenced by the Commission in the
Submit comments on or before April 18, 2011.
You may submit comments, identified by RIN number, by any of the following methods:
•
•
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Nancy Markowitz, Assistant Deputy Director, 202-418-5453,
On December 22, 2010, the Commission published in the
Since the close of the proposed rulemaking, data has been made publicly available to support the rulemaking, in particular, proposed § 38.502(a), the proposed “minimum centralized market trading percentage requirement.” Discussion of this proposed requirement is available in the notice of proposed rulemaking at pages 80588 and 80589 of the
Commodity Futures Trading Commission.
Advance notice of proposed rulemaking; notice of termination.
On November 2, 2010, the Commodity Futures Trading Commission (“Commission”) issued in the
Effective March 18, 2011.
Robert Pease, Counsel to the Director of Enforcement, 202-418-5863,
On July 21, 2010, President Obama signed the Dodd-Frank Act.
New section 4c(a) expressly prohibits certain trading practices that are disruptive of fair and equitable trading. New section 4c(a) of the CEA makes it unlawful for any person to engage in any trading, practice, or conduct on or subject to the rules of a registered entity that—
Section 747 of the Dodd-Frank Act also amended section 4c(a) by granting the Commission authority to promulgate such “rules and regulations as, in the judgment of the Commission, are reasonably necessary to prohibit the trading practices” enumerated in section 747 “and any other trading practice that is disruptive of fair and equitable trading.” The prohibition on the disruptive practices specified in new section 4c(a) will become effective 360 days after the enactment of the Dodd-Frank Act.
On November 2, 2010, the Commission issued an ANPR inviting public comment on all aspects of section 747 of the Dodd-Frank Act.
This proposed interpretive order will provide market participants and the public with guidance on the scope of the three statutory disruptive practices set forth in new CEA section 4c(a).
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains a proposed regulation pertaining to the period for submission to the IRS of taxpayer authorizations permitting disclosure of returns and return information to third-party designees. Specifically, the proposed regulation extends from 60 days to 120 days the period within which a signed and dated authorization must be received by the IRS (or an agent or contractor of the IRS) in order for it to be effective. The proposed regulation extends the period as some institutions charged with assisting taxpayers in their financial dealings have encountered difficulty in obtaining written authorizations and submitting the authorizations within the 60-day period allowed by the existing regulations. The proposed regulation will affect taxpayers who submit authorizations permitting disclosure of returns and return information to third-party designees. This document also provides notice of a public hearing on the proposed regulation.
Written or electronic comments must be received by May 17, 2011. Outlines of topics to be discussed at the public hearing scheduled for Thursday, June 9, 2011 at 10 a.m. must be received by Wednesday, May 18, 2011.
Send submissions to CC:PA:LPD:PR (REG-153338-09), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-153338-09), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulation, contact Amy Mielke, (202) 622-4570; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Oluwafunmilayo Taylor, (202) 622-7180 (not toll-free numbers).
The collection of information contained in this proposed regulation has been previously approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1816.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Books and records relating to the 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 section 6103.
This document contains proposed amendments to the Procedure and Administration Regulations (26 CFR part 301). Section 6103(c) of the Internal Revenue Code (Code) authorizes the IRS (or an agent or contractor of the IRS) to disclose returns and return information to such person or persons as the taxpayer may designate in a request for or consent to disclosure. The proposed regulation amends § 301.6103(c)-1 by extending the period for submission to the IRS of taxpayer authorizations permitting disclosure of returns and return information to designees of a taxpayer. Specifically, the proposed regulation extends from 60 days to 120 days the period within which a signed and dated authorization must be received by the IRS (or an agent or contractor of the IRS) in order for it to be effective.
On December 18, 2009, the IRS published Notice 2010-8, 2010-3 IRB 297, which announced an intention to amend the regulation under § 301.6103(c)-1 to expand the time frame for submission of section 6103(c) authorizations. The notice additionally announced interim rules extending from 60 days to 120 days the period within which section 6103(c) authorizations must be received in order to be effective. The interim rules apply to authorizations signed and dated on or after October 19, 2009. Per Notice 2010-
The IRS recognizes the importance of limiting the effective period of authorizations provided pursuant to section 6103(c). Reasonable limitation on the effective period of written authorizations helps ensure the currency of the authorization and protects taxpayer privacy. The 60-day period allowed by the existing regulation, however, has proven problematic. Some institutions charged with assisting taxpayers in their financial dealings have encountered difficulty in obtaining written authorizations and submitting the authorizations to the IRS within the 60 days allowed by the existing regulation. To reduce the burden on taxpayers and the institutions and professionals assisting them, the IRS proposes amending the regulation under section 6103(c) to extend from 60 days to 120 days the period within which taxpayer-provided authorizations must be received by the IRS (or an agent or contractor of the IRS) in order to be effective.
This regulation, as proposed, will be effective upon publication in the
Notice 2010-8, 2010-3 IRB 297, will be obsolete upon publication in the
It has been determined that this proposed regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (5 U.S.C. chapter 6), requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities. It is hereby certified that the collection of information in this regulation will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that any burden on taxpayers is minimal, since the regulation only applies to taxpayers which request or consent to the disclosure of returns or return information, and since the information collected is only that necessary to carry out the disclosure of returns or return information requested or consented to by the taxpayer (such as the name and taxpayer identification number of the taxpayer, the return or return information to be disclosed, and the identity of the designee). Moreover, it is based upon the fact that the regulation reduces the burden imposed upon taxpayers by the prior regulation by extending the period in which consents may be received by the IRS. Accordingly, a Regulatory Flexibility Analysis is not required.
Before this proposed regulation is adopted as a final regulation, consideration will be given to any written comments (a signed original and eight (8) copies) and electronic comments that are timely submitted to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.
The public hearing is scheduled for Thursday, June 9, 2011 at 10 a.m., and will be held in Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. All visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the section of this preamble titled
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by Wednesday, May 18, 2011. A period of 10 minutes will be allotted to each person for the making of comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of this proposed regulation is Amy Mielke, Office of the Associate Chief Counsel (Procedure and Administration).
Administrative practice and procedure, Alimony, Bankruptcy, Child support, Continental shelf, Courts, Crime, Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Investigations, Law enforcement, Oil pollution, Penalties, Pensions, Reporting and recordkeeping requirements, Seals and insignia, Statistics, Taxes.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(b) * * *
(2)
(f)
(g)
Coast Guard, DHS.
Notice of proposed rulemaking.
The U.S. Coast Guard is proposing to establish a temporary safety zone extending 50 yards to the north and south of the Hylebos Bridge, Tacoma, WA in both directions along the entire length of the Hylebos Bridge to ensure the safety of the boating public during the Hylebos Bridge restoration project. This safety zone is necessary to protect vessels transiting in the vicinity of the Hylebos Bridge from falling debris resulting from concrete removal performed as part of the bridge restoration.
Comments and related material must be received by the Coast Guard on or before May 17, 2011. Requests for public meetings must be received by the Coast Guard on or before April 18, 2011.
You may submit comments identified by docket number USCG-2011-0114 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods.
If you have questions on this proposed rule, call or e-mail Ensign Anthony P. LaBoy, USCG Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206-217-6323, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0114), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Ensign Anthony P. LaBoy at the telephone number or e-mail address indicated under the
The Hylebos Bridge restoration involves removal of deteriorated
The City of Tacoma Public Works has requested a closure of the waterway to prevent property damage and/or personal injury to the maritime public during concrete removal portions of the Hylebos Bridge restoration. The Coast Guard is proposing this safety zone to ensure the safety of the maritime public during concrete removal and will do so by prohibiting any person or vessel from entering or remaining in the safety zone unless authorized by the Captain of the Port, Puget Sound or Designated Representative.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The Coast Guard bases this finding on the fact that the safety zone is small in size, short in duration, and maritime traffic will be able to transit this area during times when the zone is not enforced. Maritime traffic may also request permission to transit through the zone from the Captain of the Port, Puget Sound or Designated Representative.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Hylebos Waterway from 6 a.m. until 6 p.m. from August 20, 2011 through August 22, 2011. This safety zone will not have a significant economic impact on a substantial number of small entities, because the safety zone is short in duration, is minimal in size, and maritime traffic will be allowed to transit through the safety zone with the permission of the Captain of the Port, Puget Sound or Designated Representative.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Ensign Anthony P. LaBoy at the telephone number or e-mail address indicated under the
The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination will be made available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165, as follows:
1. The authority citation for Part 165 continues to read as follows:
33 U.S.C 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T13-177 to read as follows:
(a)
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to our authority under the Clean Air Act (CAA or Act), EPA is proposing to disapprove the portion of the Kansas CAA “Infrastructure” State Implementation Plan (SIP) submittal addressing significant contribution to nonattainment or interference with maintenance in another State with respect to the 2006 24-hour fine particle (PM
Comments must be received on or before April 18, 2011.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2011-0279 by one of the following methods:
1.
2.
3.
4.
Ms. Elizabeth Kramer, Air Planning & Development Branch, U.S. Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
On December 18, 2006, EPA revised the 24-hour average PM
Section 110(a)(2) lists the elements that such new infrastructure SIPs must address, as applicable, including Section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On September 25, 2009, EPA issued its “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM
As identified in the 2009 Guidance, the “good neighbor” provisions in Section 110(a)(2)(D)(i) require each State to submit a SIP that prohibits emissions that adversely affect another State in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the State from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other States; (2) interfere with maintenance of the NAAQS in other States; (3) interfere with provisions to prevent significant deterioration of air quality in other States; or (4) interfere with efforts to protect visibility in other States.
In the 2009 Guidance, EPA indicated that SIP submissions from States pertaining to the “significant contribution” and “interfere with maintenance” requirements of Section 110(a)(2)(D)(i)(I) should contain adequate provisions to prohibit air pollutant emissions from within the State that contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other State. EPA further indicated that the State's submission should explain whether or not emissions from the State
EPA promulgated the CAIR on May 12, 2005 (
EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR Federal Implementation Plans (FIP) in their entirety.
In order to address the judicial remand of CAIR, EPA has proposed a new rule to address interstate transport pursuant to Section 110(a)(2)(D)(i)(I), the “Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone” (Transport Rule).
On April 12, 2010, EPA received a SIP revision from the State of Kansas intended to address the requirements of Section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM
On April 12, 2010, EPA received an Infrastructure SIP revision from the State of Kansas intended to address the requirements of Section 110(a)(2)(D)(i)(I) with respect to the 2006 PM
Kansas' submittal describes how the State believes it meets transport requirements based in part on recent controls established for SO
EPA's 2009 Guidance stated that a State's SIP submission pertaining to the requirement of Section 110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis.
Based upon our evaluation, EPA is proposing that this SIP revision does not meet the requirements of 110(a)(2)(D)(i)(I) of the CAA. Therefore, EPA is proposing disapproval of the portion of Kansas' Infrastructure SIP relating to Interstate Transport, Section 110(a)(2)(D)(i)(I). The submitted
Also, under Section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. §§ 7501-7515), or is required in response to a finding of substantial inadequacy as described in section 7410(k)(5) (SIP call), starts a sanctions clock. The provisions in the submittal we are proposing to disapprove were not submitted to meet either of those requirements. Therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered.
The full or partial disapproval of a State implementation plan revision triggers the requirement under Section 110(c) that EPA promulgate a FIP no later than 2 years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. The Transport Rule FIP, if finalized in the manner proposed, may address these requirements for the State of Kansas.
We are proposing to disapprove a submission from the State of Kansas intended to demonstrate that Kansas has adequately addressed the elements of CAA Section 110(a)(2)(D)(i)(I) that require the State's SIP to contain adequate provisions to prohibit air pollutant emissions from sources within a State from significantly contributing to nonattainment in or interference with maintenance of the 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to act on State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences (
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector.” EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, result from this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new regulations but simply disapproves certain State requirements for inclusion into the SIP.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove State choices, based on the criteria of the Clean Air Act. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under Section 110 and subchapter I, part D of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.
The statutory authority for this action is provided by Sections 110 of the CAA, as amended (42 U.S.C. 7410).
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter.
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to our authority under the Clean Air Act (CAA or Act), EPA is proposing to disapprove the portion of the Missouri CAA Section 110(a)(2) “Infrastructure” State Implementation Plan (SIP) submittal addressing significant contribution to nonattainment or interference with maintenance in another state with respect to the 2006 24-hour fine particle (PM
Comments must be received on or before April 18, 2011.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2011-0215, by one of the following methods:
1.
2.
3.
4.
Ms. Elizabeth Kramer, Air Planning & Development Branch, U.S. Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This Section provides additional information by addressing the following questions:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
On December 18, 2006, EPA revised the 24-hour average PM
Section 110(a)(2) lists the elements that such new infrastructure SIPs must address, as applicable, including Section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On September 25, 2009, EPA issued its “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM
As identified in the 2009 Guidance, the “good neighbor” provisions in Section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.
In the 2009 Guidance, EPA indicated that SIP submissions from states pertaining to the “significant contribution” and “interfere with maintenance” requirements of Section 110(a)(2)(D)(i)(I) should contain adequate provisions to prohibit air pollutant emissions from within the state that contribute significantly to
EPA promulgated the CAIR on May 12, 2005, (
EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR Federal Implementation Plans (FIP) in their entirety.
In order to address the judicial remand of CAIR, EPA has proposed a new rule to address interstate transport pursuant to Section 110(a)(2)(D)(i)(I), the “Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone” (Transport Rule).
On December 28, 2009, EPA received a SIP revision from the State of Missouri intended to address the requirements of Section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM
Missouri's December 28, 2009, submittal included a description of how the state has implemented rules or is developing rules to meet various requirements to address the long-range transport of pollution. Missouri has a number of rules included in the SIP for the control of NO
EPA's 2009 Guidance stated that a state's SIP submission pertaining to the requirement of Section 110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis.
Furthermore, the state's submittal also indicates that it is meeting its 110(a)(2)(D)(i)(I) obligations with respect to the 2006 PM
Based upon our evaluation, EPA is proposing that this SIP revision does not meet the requirements of 110(a)(2)(D)(i)(I) of the CAA. Therefore, EPA is proposing disapproval of the portion of Missouri's Infrastructure SIP relating to Interstate Transport, Section 110(a)(2)(D)(i)(I). The submitted provisions are severable from each other. Therefore, EPA is proposing to disapprove those provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration and will act on the remainder of the SIP submission in a subsequent rulemaking.
Also, under Section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. §§ 7501-7515), or is required in response to a finding of substantial inadequacy as described in section 7410(k)(5) (SIP call), starts a sanctions clock. The provisions in the submittal we are proposing to disapprove were not submitted to meet either of those requirements. Therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered.
The full or partial disapproval of a state implementation plan revision triggers the requirement under Section 110(c) that EPA promulgate a FIP no later than 2 years from the date of the disapproval unless the state corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. The Transport Rule FIP, if finalized in the manner proposed, may address these requirements for the State of Missouri.
We are proposing to disapprove a submission from the State of Missouri intended to demonstrate that Missouri has adequately addressed the elements of CAA Section 110(a)(2)(D)(i)(I) that require the state's SIP to contain adequate provisions to prohibit air pollutant emissions from sources within a state from significantly contributing to nonattainment in or interference with maintenance of the 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to act on state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves certain state requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences (e.g., higher offset requirements) may or will flow from this disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. EPA has determined that the proposed
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely disapproves certain state requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. However, today's proposed disapproval does not have federalism implications. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new regulations but simply disapproves certain state requirements for inclusion into the SIP.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the Clean Air Act. Accordingly, this action merely proposes to disapproves certain state requirements for inclusion into the SIP under Section 110 and subchapter I, part D of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.
The statutory authority for this action is provided by Sections 110 of the CAA, as amended (42 U.S.C. 7410).
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter.
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to section 112(l) of the 1990 Clean Air Act, EPA granted delegation of specific national emission standards for hazardous air pollutants (NESHAP) to the Maricopa County Air Quality Department on May 6, 2010, and December 14, 2010, and to the Santa Barbara County Air Pollution Control District on July 30, 2010. EPA is proposing to revise the Code of Federal Regulations to reflect the
Any comments on this proposal must arrive by April 18, 2011.
Submit comments, identified by docket number EPA-R09-OAR-2011-0213, by one of the following methods:
1.
2.
3.
Mae Wang, EPA Region IX, (415) 947-4124,
This document concerns the delegation of unchanged NESHAP to the Maricopa County Air Quality Department, and the Santa Barbara County Air Pollution Control District. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Extension of comment period.
On February 23, 2011, EPA published in the
Comments should be submitted no later than April 4, 2011.
You may submit your comments, identified by Docket ID No. EPA-HQ-OA-2011-0154, -0155, -0156, -0157, -0158, -0159, -0160, -0161, -0162, -0163, -0164, -0165, -0166, -0167 or -0168 by any one of the following methods:
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For further information on this document, please contact Stuart Miles-McLean, Office of Regulatory Policy and Management (1803A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 202-564-6581; fax number: 202-564-7322; e-mail address:
EPA extending its comment period for feedback on the design of its retrospective review plan under Executive Order 13563 to April 4, 2011. To assist you in focusing your comments or recommendations, EPA has provided various categories relating to issue/impact, program area, or a multipurpose general area. These categories are not intended to restrict the issues that you may wish to address. The following list provides the category of each docket. If you wish to submit comments, please select one of the appropriate dockets listed below or send by mail as described in the
Submit a comment on “Improving Regulations: Integration and Innovation” at docket # EPA-HQ-OA-2011-0161.
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• Pertains to more than one issue/impact and/or program area.
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EPA welcomes comment and feedback from all parties on the issues listed herein. The Agency is collecting this information for its planning purposes and is not bound to further action or response. All submissions will be made publically available on
Office of Head Start (OHS), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
This proposed rule would amend Head Start program regulations to codify statutory eligibility requirements for Head Start and Early Head Start program enrollment and strengthen procedures to determine, verify, certify, and maintain records regarding eligibility for Head Start and Early Head Start program enrollment. It also proposes to create new requirements for the person seeking services to certify in a signed and dated statement that the documents and information that the person provided concerning eligibility are accurate to the best of the person's knowledge, as well as new requirements for program staff who make the eligibility determination to certify in a signed and dated statement that the information on eligibility in the file is accurate to the
In order to be considered, comments on this proposed rule must be received on or before April 18, 2011.
Interested persons are invited to submit comments to the Office of Head Start, 1250 Maryland Avenue, SW., Washington, DC 20024, Attention: Colleen Rathgeb, Office of Head Start, or electronically via the Internet at
Colleen Rathgeb, Office of Head Start, 202-205-7378 (not a toll-free call). Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time.
This Notice of Proposed Rulemaking is published under the authority granted to the Secretary of Health and Human Services by section 644(c) of the Head Start Act, as amended by the Improving Head Start for School Readiness Act of 2007, as well as sections 645(a)(1)(A) and 645A(c) of the Act.
The Head Start Act provides for a period of at least 30 days for public comment. In making any modifications to this Notice of Proposed Rulemaking, we will not consider comments received beyond the 30-day comment period. To make sure your comments are fully addressed, we suggest the following:
• Be specific rather than general;
• Address only issues raised by the proposed rule;
• Explain reasons for any objections or recommended changes;
• Propose specific alternative language, as appropriate; and
• Reference the specific section of the proposed rule being addressed.
The Head Start program is a national program that promotes school readiness of low-income children by enhancing their cognitive, social, and emotional development through the provision of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.
The Head Start program provides grants to local public and private non-profit and for-profit agencies to provide comprehensive child development services to economically disadvantaged children and families, with a special focus on helping preschoolers develop the skills they need to be successful in school. In FY 1995, the Early Head Start program was established to serve families of economically disadvantaged children from birth to three years of age and pregnant women from such families in recognition of the mounting evidence that the earliest years matter a great deal to children's growth and development.
On December 12, 2007, the President signed the Improving Head Start for School Readiness Act of 2007, Public Law 110-134. The law reauthorized the Head Start program through September 30, 2012, and built on the program's many successes. The reauthorization addressed the needs of children and families by focusing efforts on building increased systems of accountability, improving quality, and expanding program access. The 2007 reauthorization also made several changes to the eligibility criteria and related policies for participation in Head Start and Early Head Start programs described in Section 645 and 645A of the Act. The Act included homeless children as a category of individuals who are deemed to be from low-income families and therefore categorically eligible for enrollment in Head Start and Early Head Start, but who were not included explicitly in the previous version of the Act. Homeless children are among the most disadvantaged children in the country. Since the reauthorization, grantees have been informed of these changes through a Program Instruction and various policy clarifications related to categories of individuals that are categorically eligible and the definition of homeless child to be used to determine eligibility. However, the current regulations do not specify how agencies are required to verify or certify that a child is homeless.
The proposed revisions to 45 CFR 1305.2 and 1305.4 directly respond to the findings of a recent investigation by the Government Accountability Office (GAO) that the Head Start program is at risk of having over-income children enrolled while legitimate under-income and categorically eligible children are put on wait lists. GAO presented its preliminary results about its ongoing investigation in testimony entitled, “Head Start: Undercover Testing Finds Fraud and Abuse at Selected Head Start Centers” before the House Education and Labor Committee on May 18, 2010, which is available at:
Specifically, in its investigation, GAO followed up on received allegations of fraud and abuse involving two Head Start grantees, including that Head Start centers allegedly manipulated recorded income to make over-income applicants appear under-income; encouraged families to report that they were homeless when they were not; enrolled more than 10 percent of over-income children allowed by the Head Start Act; and counted children as enrolled in more than one center at a time. In its final report, GAO states that it was able to substantiate that “children were enrolled in both the grantee and delegate sites,” indicating that the grantee did not comply with the Head Start requirement to report an unduplicated count of its funded enrollment numbers. After further investigation of the programs alleged to have enrolled ineligible children by designating them as “homeless,” GAO was unable to substantiate the fraud claim because not all of the records reviewed contained sufficient information to determine whether a given family was homeless. However, GAO noted that the lack of requirements related to verifying and documenting a child's homeless status raised concerns about the risk of fraud in the Head Start program.
In order to ascertain if this type of fraud was occurring at other Head Start
Upon learning of GAO's investigation, we immediately took numerous actions within our statutory and regulatory authority to respond to GAO's findings and to bolster program integrity efforts across the Head Start and Early Head Start programs; prevent future fraud and mismanagement; and ensure that every slot is reserved for an eligible child. For example, ACF issued a Program Instruction on May 10, 2010, entitled, “Income Eligibility for Enrollment” (ACF-PI-HS-10-01), which reminds grantees of their legal obligations to verify the eligibility of each child served and determine eligibility in accordance with the Head Start statute and regulations, as well as the serious consequences for falsifying eligibility determinations. The Program Instruction is available at:
However, we believe GAO's findings necessitate the implementation of new enrollment procedures, as proposed by this regulation, in order to reiterate and strengthen the requirements. Therefore, we are proposing new requirements for Head Start and Early Head Start agency staff regarding verification, documentation, and certification of the information submitted by the applicants prior to determining if a pregnant woman or child is eligible for participation in a Head Start or Early Head Start program. This proposed regulation will ensure that taxpayer dollars are spent in conformance with the purpose and requirements of the Head Start Act and that the neediest children and families in our country benefit from the program's services. The purpose of the program, as stated in section 636 of the Head Start Act, is to “promote the school readiness of low-income children” and provide “low-income children and their families of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.” As stated in sections 645 and 645A of the Head Start Act and Part 1305 of the current Head Start regulations, the eligibility requirements of the program require that, with limited exceptions, participants must be either “income eligible,” meaning the pregnant woman or family's income is equal to, or less than, the income guidelines (the “official poverty line”) or “categorically eligible,” meaning that the individuals are eligible for participation in a Head Start or Early Head Start program even if the income of the pregnant woman or family exceeds the income guidelines due to being a member of one of the specific categories of individuals authorized under the Act and current regulations—being eligible for public assistance; being a homeless child; or being a child in foster care. While the Head Start Act provides authority for grantees to enroll a certain portion of pregnant women and children who are not income or categorically eligible, the statute nonetheless makes clear that the primary target populations for the Head Start and Early Head Start programs are low-income and categorically eligible children and their families, and, in the case of Early Head Start, low-income pregnant women. Therefore, most of the enrollment slots are reserved for pregnant women and children who are income or categorically eligible.
In particular, we believe GAO's findings regarding the apparent fraudulent enrollment of ineligible children in Head Start slots that are reserved for children who are income and categorically eligible necessitate the implementation of new enrollment procedures to ensure eligible children receive Head Start services in a timely fashion and to prevent harm resulting from being denied access to these services. In the case of Head Start, if an eligible child misses all or a part of the year of Head Start services because an ineligible child is enrolled in a slot intended for the eligible child, the eligible child suffers real harm by being deprived of an essential educational experience needed to prepare him or her for success in elementary school. In the case of Early Head Start, if an eligible infant or toddler misses all or a part of the year of Early Head Start services, the child suffers harm by being denied participation in a program that has been shown by research to help children perform significantly better on a range of measures of cognitive, language, and social-emotional development than those in a randomly assigned control group and potentially to reduce the risk of poor cognitive, language, and school outcomes later on in life.
GAO identified the lack of verification requirements as a concern related to enrollment fraud as they found evidence that “Head Start staff encouraged parents to report that they were homeless when they were not in order to qualify them for the program.” Therefore, we believe it is essential to issue this proposed rule to prevent cases of fraud in which staff intentionally enroll children based on being homeless, despite knowing they are ineligible. Specifically, this proposed regulation reflects the status of homeless children as categorically eligible for participation in Head Start and Early Head Start in order to conform to the Head Start Act and specifies how agency staff must verify, certify, and document in a child's record how they explored a claim by a child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's situation that the child is homeless.
We note that since GAO's findings were released, we have kept the Head Start grantee community, Congress, and the general public apprised of our increased focus on program integrity and our planned changes in operating procedures. In addition, these proposed requirements would place a minimal burden on grantees. For example, this proposed regulation would add a requirement for grantees to maintain source documents in each child and pregnant woman's record; grantees
As discussed, the findings of a recent investigation by GAO identified weaknesses in existing eligibility verification and documentation requirements that allegedly resulted in the enrollment of ineligible children. The proposed revisions to § 1305.2 and § 1305.4 are intended to reiterate and strengthen Head Start and Early Head Start agency procedures for determining eligibility for program enrollment, including procedures to verify, certify, and document such eligibility, and eliminate such weaknesses. In addition, the regulation proposes to create a new requirement for pregnant women and parents, guardians, or other person(s) seeking services for the child who have knowledge of the family's situation to certify that they have submitted factual and accurate documents to be used to verify their eligibility. The regulation proposes to create new requirements for program staff who make the eligibility determination to certify that the information relied on in making the decision is accurate to the best of his or her knowledge. The regulation proposes to initiate new requirements for agencies to establish policies describing the actions that will be taken against agency staff who intentionally violate Federal and agency eligibility determination regulations, policies, and procedures. The regulation also proposes new requirements for agencies to provide training related to eligibility requirements and the legal consequences of committing fraud. The proposed revisions also change the definitions of “Head Start eligible,” “income guidelines,” and “low-income family” and add a definition of “homeless children” to conform to statutory requirements and provisions.
Note that we use the term “we” throughout the regulatory text and preamble. The term “we” means the Secretary of the Department of Health and Human Services in consultation with the Assistant Secretary for Children and Families and other officials within the Department. Likewise, the term “Act” refers to the Head Start Act, as amended.
This regulation proposes to modify the definitions of “Head Start eligible,” “income guidelines,” and “low-income family” to comply with statutory requirements and provisions. The current definitions contain outdated information regarding eligibility guidelines and/or incorrect statutory citations that we believe must be updated in order to ensure all grantees have correct and clear information related to participant eligibility and enrollment. Otherwise, the Head Start program will be vulnerable to incorrect eligibility and enrollment determinations. To provide clarification for grantees, we also propose to add the definition of “homeless children” as paragraph (i) from section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), which was added as a definition in section 637(11) of the Head Start Act in the 2007 reauthorization, and to redesignate the subsequent definitions accordingly.
The current definition of “Head Start eligible” states that: “A child that meets the requirements for age and family income as established in this regulation or, if applicable, as established by grantees that meet the requirements of section 645(a)(2) of the Head Start Act. Up to 10 percent of the children enrolled may be from families that exceed the low-income guidelines. Indian Tribes meeting the conditions specified in 45 CFR 1305.4(b)(3) are excepted from this limitation.” This definition does not reflect current statutory eligibility requirements. For example, the rule that “up to 10 percent of the children enrolled may be from families that exceed the low-income guidelines” was changed when the 2007 reauthorization created several other eligibility provisions. In addition, the definition does not include “Early Head Start” in the lead-in language. Therefore, the new definition of “Head Start and Early Head Start eligible” at § 1305.2(g) is proposed to read as follows: “Head Start or Early Head Start eligible means a pregnant woman or child who meets the requirements for age and family income or categorical eligibility or, if applicable, the requirements established by a grantee under section 645(a)(2) of the Head Start Act or by a Head Start program operated by an Indian Tribe under 45 CFR § 1305.4(d).”
As indicated, we propose to add a definition in § 1305.2 of “homeless children.” The 2007 reauthorization expanded eligibility to include homeless children as categorically eligible for participation in Head Start. The definition of “homeless children” also was added to section 637(11) of the Head Start Act, which states that “[t]he term “homeless children” has the meaning given the term “homeless children and youth” in section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)).” To improve clarity for grantees and enable them to have the necessary references related to eligibility determination in one regulation, we propose to include a definition of “homeless children” based on the McKinney-Vento Homeless Assistance Act as § 1305.2(i) to mean individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of 42 U.S.C. 11302(a)(1)); and include (i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement; (ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of 42 U.S.C. 11302(a)(2)(C)); (iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in 20 U.S.C. 6399) who qualify as homeless for the purposes of this part because the children are living in circumstances described in paragraphs (i) through (iii).
The current definition of “income guidelines” at § 1305.2(j) references an outdated section of the Head Start Act. The current definition defines “income guidelines” as “the official poverty line specified in section 652 of the Head Start Act.” However, the official poverty line in the Act now is referenced in the definitions section (section 637(19)) of the Head Start Act. Therefore, we propose to update § 1305.2(j) to reference the correct Head Start Act citation and to redesignate it as paragraph (k). The proposed new definition of income guidelines at § 1305.2(k) means the official poverty line specified in section 637(19) of the Head Start Act. The U.S. Department of Health and Human Services publishes the income guidelines each year in the
The current definition of “low-income family” at § 1305.2(l) states that low-
In order to update and strengthen the content of § 1305.4 related to determining, verifying, and documenting Head Start and Early Head Start program eligibility consistent with the changes made through the 2007 reauthorization of the Head Start Act, we propose to revise the heading of § 1305.4, “Age of child and family income eligibility” to read “Determining, verifying, and documenting eligibility.”
Because the current regulations regarding eligibility were updated last on March 16, 1998, prior to the 2007 reauthorization of the Head Start Act, these proposed revisions represent the full scope of actions Head Start and Early Head Start agencies are required now by statute to undertake related to determining participant eligibility. We propose to revise § 1305.4 to incorporate the new income eligibility criteria added in the 2007 reauthorization. These proposed determination requirements are described in paragraphs (a) through (d). We believe that the lack of updated and accurate descriptions of eligibility criteria in the current regulations otherwise would contribute to confusion and enrollment determination errors by Head Start and Early Head Start programs.
The current regulations require programs to verify family income (§ 1305.4(c)); identify which documents should be reviewed (§ 1305.4(d)); and establish rules under which an agency must maintain a signed statement by an employee that identifies which documents were examined and stating the child is eligible (§ 1305.4(e)). The current regulations only specify that income eligibility based on having income below the Federal poverty line, has to be verified and do not require that copies of documentation be maintained in the agency records. We believe that the lack of clear up-to-date rules governing eligibility determination, verification, certification, and documentation requirements in the current regulations exposes the Head Start and Early Head Start programs to an unacceptable risk of fraud, as revealed by GAO's investigation.
Therefore, as detailed later in this preamble, in paragraphs (e) to (g), we describe proposed requirements for agency staff to verify income and categorical eligibility and propose specific instructions about the required certification and documentation steps program staff must take. In paragraph (g), the regulation proposes new requirements for pregnant women and person(s) seeking services for individual children to certify that the documents and information that they provided concerning eligibility are accurate to the best of their knowledge, as well as a new requirement for the program staff persons who made the eligibility determination also to certify that the information on eligibility in the file is accurate to the best of their knowledge. Paragraph (g) also proposes to add new requirements related to documentation to ensure that agency staff maintains eligibility determination records for each pregnant woman or child, including copies of all documents submitted by a pregnant woman or persons seeking services on behalf of a child to the program relating to the pregnant woman's or child's eligibility for services and any staff member's notes recording any other information related to eligibility received from any source; documentation establishing that an agency staff member verified the accuracy of the information on eligibility; a record of the category under which the pregnant woman or child was determined eligible; and the required beneficiary and staff certifications. Additionally, paragraph (g) explains the retention and access requirements related to eligibility determination records.
In paragraph (h) we propose a new requirement that all Head Start and Early Head Start agencies must establish policies and procedures describing the actions that will be taken against agency staff who commit intentional violations of Federal and agency eligibility determination requirements, including enrolling pregnant women and children who staff have not documented as eligible to participate in the program.
In paragraph (i), we propose to extend current regulatory training requirements at § 1304.52(l) to specify that such training for all governing body, policy council, management and those staff members who have the responsibility to make eligibility determinations must include an explanation of the legal consequences of committing fraud and information on methods for obtaining facts necessary for complete and accurate eligibility determinations.
Specifically, proposed paragraph (a) reflects the statutory requirements at section 638 of the Act regarding age eligibility for participation in the Head Start program. Following the statute, we begin paragraph (a) by noting the exception stated in section 645(a)(2) of the Head Start Act, which authorizes qualifying communities to develop their own eligibility criteria within statutory limits. Section 645(a)(2) applies to a Head Start program that is operated in a community with a population of 1,000 or less individuals and the following conditions apply: There is no other preschool program in the community; the community is located in a medically underserved area, as designated by the Secretary pursuant to section 330(b)(3) of the Public Health Service Act [42 U.S.C. 254c(b)(3)], and is located in a health professional shortage area, as designated by the Secretary pursuant to section 332(a)(1) of such Act [42 U.S.C. 254e(a)(1)]; the community is in a location which, by reason of remoteness, does not permit reasonable access to preschool and medical services; and not less than 50 percent of the families to be served in the community are eligible under the eligibility criteria established by the Secretary under paragraph in section 645(a)(1) of the Act. A Head Start program in such a locality is required to establish the eligibility criteria to be used, except that no child residing in such community whose family is eligible under such eligibility criteria shall, by virtue of regular eligibility criteria, be denied an opportunity to participate in such program.
Section 645A(c) of the Act provides that to be eligible for participation in Early Head Start programs, an individual must be a pregnant woman or a child under the age of three. Section 645(a)(5)(A) of the Act provides that children who are at least three years old through the age of compulsory school attendance are age eligible for
Since the current paragraph (a) does not refer to the specific age eligibility requirements for Early Head Start programs, we propose in paragraph (a)(1)(i) that to be eligible for Early Head Start services, “a child must be an infant or toddler between the ages of zero and three years old.” Current paragraph (a) also does not refer to the age eligibility of pregnant women. Therefore, we propose to add a provision in (a)(1)(ii) to specify that a pregnant woman may be any age in order to be eligible for enrollment in an Early Head Start program.
In proposed paragraph (a)(2), we primarily state the same eligibility requirements currently found in paragraph (a). Specifically, proposed (a)(2) states that “To be age eligible for Head Start services, a child must be at least three years old by the date used to determine eligibility for public school in the community in which the Head Start program is located and not older than the age of required school attendance, except in cases where the Head Start program's approved grant provides specific authority to serve younger children. Examples of such exceptions are programs serving children of migrant and seasonal farmworker families.” The date to be used for age determination remains the same as the current regulation. We propose to remove the current exception of Early Head Start programs since we now explain the Early Head Start requirements separately in proposed paragraph (a)(1). We also propose to add reference to “seasonal farmworker families” to reflect statutory terminology.
Under proposed paragraph (b)(1), we describe the statutory income eligibility requirements found in section 645(a)(1) of the Act. As described above with regard to paragraph (a), we begin proposed paragraph (b) with the exception stated in section 645(a)(2) of the Head Start Act, which authorizes qualifying communities to develop their own eligibility criteria. Proposed paragraph (b)(1) reflects the requirements for Head Start and Early Head Start eligibility that pregnant women and age eligible children from low-income families shall be eligible for participation in Head Start and Early Head Start programs.
Proposed paragraph (b)(2) reflects the new statutory authority at section 645(a)(1)(B)(iii)(I) established by the 2007 reauthorization of the Head Start Act. This paragraph explains that to a reasonable extent, but not to exceed 10 percent of participants, participants may include age eligible children and pregnant women in the area served who would benefit from Head Start or Early Head Start programs, but who are not eligible under paragraphs (b)(1) or (c) [income or categorically eligible]. In order to conform to the new statutory authority that was provided in section 645(a)(1)(B)(iii)(I) through the 2007 reauthorization, we reiterate in proposed paragraph (b) that programs may enroll pregnant women or children from over-income families “in the area served who would benefit from such programs.”
Proposed paragraph (b)(3) reflects the new statutory authority at section 645(a)(1)(B)(iii)(II) established by the 2007 reauthorization of the Head Start Act. This paragraph explains that from the area served, programs may enroll an additional 35 percent of participants beyond the 10 percent eligible under proposed paragraph (b)(2) that are pregnant women and age eligible children whose families have incomes over 100 percent but below 130 percent of the income guidelines, who do not satisfy the eligibility requirements described under paragraphs (b)(1) or (c) [income or categorically eligible]. We are reiterating the provision in this proposed rule to conform to the new statutory authority that was provided through the 2007 reauthorization.
Proposed paragraph (b)(3)(i) specifies that agencies that choose to serve individuals eligible under this paragraph must establish and implement outreach, prioritization, and enrollment policies and procedures that ensure they are meeting the needs of children and pregnant women eligible based on being a member of a low-income family, as defined in this proposed rule, and enrolling at least 10 percent of children with disabilities who are eligible under proposed paragraph (b)(2), prior to serving the pregnant women and children from families with incomes over 100 percent to 130 percent of the income guidelines.
In order to align the Head Start regulations with the Act, proposed paragraph (b)(3)(ii) also references the annual reporting requirements stated in section 645(a)(1)(B)(iv) of the Act for agencies that choose to serve additional children and pregnant women per the authority granted at section 645(a)(1)(B)(iii)(II) of the Act. The 2007 reauthorization added the reporting requirement under section 645(a)(1)(B)(iv) for all Head Start and Early Head Start agencies that serve additional pregnant women and children under section 645(a)(1)(B)(iii)(II) to document how the grantees enrolling additional over-income children are meeting the needs of children from low-income families, homeless children, children in foster care, and pregnant women and children from families eligible for public assistance, as well as to document that they have implemented outreach and enrollment policies and procedures that ensure the agency is enrolling at least 10 percent of children with disabilities prior to serving children from families with incomes over 100 percent and under 130 percent of the income guidelines.
Proposed paragraph (c) describes the three types of categorical eligibility for Head Start and Early Head Start based on section 645(a)(1)(B)(i) and (ii) of the Act and 45 CFR 1305.4(l).
The first proposed type of categorical eligibility reiterates the eligibility condition stated in section 645(a)(1)(B)(i) of the Act that a child is eligible if the child's family is “eligible or, in the absence of child care, would potentially be eligible for public assistance.” In addition, children and pregnant women are eligible under the proposed regulation for Early Head Start based on section 645A(c) of the Head Start Act, which makes the eligibility criteria in section 645(a)(1) of the Act applicable to the enrollment of children and pregnant women in Early Head Start programs. As provided in policy guidance, TANF and SSI are the only two programs that are considered as
The second proposed type of categorical eligibility specifies that a homeless child is eligible for participation, as stated in section 645(a)(1)(B)(ii) of the Act. Section 645A(c) of the Head Start Act makes the eligibility criteria in section 645(a)(1) of the Act applicable to the enrollment of children and pregnant women in Early Head Start programs. As described earlier, the 2007 reauthorization added the provision stating that homeless children are categorically eligible for participation in Head Start. The definition of “homeless children” also was added to section 637(11) of the Head Start Act, which states that “[t]he term “homeless children” has the meaning given the term “homeless children and youth” in section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)).” As stated previously, we propose to add this definition of “homeless children” to § 1305.2(i) to improve clarity for grantees.
The third type of categorical eligibility proposes that children in foster care are eligible for participation, which already is specified in the current definition of “low-income family” in § 1305.2(l) (proposed to be redesignated as § 1305.2(m)). It has been longstanding Head Start policy for foster children to be eligible for participation in Head Start, without regard to their foster family's income. We propose in paragraph (c) to add a reference to the regulatory definition of foster care used for Federal child welfare programs to this Head Start rule to enable grantees to conduct the eligibility determination process accurately and consistently. We propose to reference 45 CFR 1355.20(a), which defines foster care to mean “24-hour substitute care for children placed away from their parents or guardians and for whom the State agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made.”
In summary, proposed paragraph (c) provides that pregnant women and age eligible children are categorically eligible for enrollment in Head Start and Early Head Start if: (1) The pregnant woman or the child's family is eligible or, in the absence of child care, would potentially be eligible for public assistance; (2) the child is homeless, as defined in § 1305.2(i); or (3) the child is in foster care.
In proposed paragraph (d), we move the requirements and procedures related to the special income eligibility rules governing Indian Tribes that are reflected currently in § 1305.4(b)(3) and (4) to proposed paragraph (d)(1) through (5). The current paragraph only includes references to income eligibility based on the low-income guidelines, but does not include references to categorical eligibility. Therefore, we also propose to update this paragraph to conform to the statutory authority.
Under the proposed paragraph, a Head Start or Early Head Start program operated by an Indian Tribe may enroll more than 10 percent of its children from families whose incomes exceed the low-income guidelines or are not categorically eligible when:
• All children from Indian and non-Indian families living on the reservation that meet the low-income guidelines or are categorically eligible who wish to be enrolled in the program are served by the program;
• All children from income-eligible or categorically-eligible Indian families native to the reservation living in non-reservation areas, approved as part of the Tribe's service area, who wish to be enrolled in the program are served by the program. In those instances in which the non-reservation area is not served by another Head Start or Early Head Start program, the Tribe must serve all of the income-eligible and categorically-eligible Indian and non-Indian children whose families wish to enroll them in the program prior to serving over-income children;
• The Tribe has the resources within its grant or from other non-Federal sources to enroll children from families whose incomes exceed the low-income guidelines or are not categorically eligible without using additional funds from HHS intended to expand Head Start or Early Head Start services; and
• At least 51 percent of the children to be served by the program are from families that meet the income-eligibility guidelines or are categorically eligible.
Proposed paragraph (d)(5) maintains the content from current § 1305.4(b)(4), but updates the reference in this provision from paragraph (b)(3) to paragraph (d). The paragraph proposes that programs which meet the conditions of paragraph (d) must annually set criteria that are approved by the Policy Council and the Tribal Council for selecting over-income children who would benefit from such a program.
Proposed paragraph (e) would establish requirements for family income to be verified before a child or pregnant woman is determined to be eligible for Head Start or Early Head Start participation based on being a member of a low-income family. We propose adding these income verification requirements to respond to GAO's findings and concerns related to the lack of requirements in many programs to verify, document, and maintain records. This proposed income verification process would reduce the risk GAO cited whereby “dishonest persons could falsify earnings statements and other documents in order to qualify.” This responds directly to GAO's recommendation that we establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility, such as maintaining income documentation provided by the applicant (
Proposed paragraph (e) incorporates the current regulatory requirement related to income verification in § 1305.4(c), which requires that family income must be verified by the Head Start or Early Head Start program before determining that a child is eligible based on income guidelines. We propose to continue the longstanding requirement that family income must be verified prior to determining eligibility for enrollment in a Head Start or Early Head Start program. As defined in proposed § 1305.2(b), the term “enrollment” means “the official acceptance of a family by a Head Start program and the completion of all procedures necessary for a child and family to begin receiving services.”
Paragraph (e) proposes a new requirement related to a pregnant woman's or family's declaration that the pregnant woman or family has no income. Currently, there are no regulations that specify what actions agencies should take when a pregnant woman or a child's parent, guardian, or other person(s) seeking services for the
Accordingly, under proposed paragraph (e), before a child or pregnant woman is determined to be eligible on the basis of family income, the pregnant woman or the child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's finances must submit information to the program concerning the family's income. Under the proposed rule, verification must include examination of documents, such as individual income tax forms, W-2 forms, pay stubs, pay envelopes, or written statements from employers (if individual income tax forms, W-2 forms, pay stubs, or pay envelopes are not available). Income would be required to be compared to the poverty guidelines for the appropriate size of family, and program staff would need to document whether a pregnant woman or child's family qualifies as a low-income family under the income guidelines for the appropriate size of family. Under the proposed rule, when appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, programs could seek information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, and document the names, titles, and relationship to the applicant in the participant's record. Programs also could seek third party information in cases where documents are not submitted to prove a claim that a pregnant woman or family has no income. We believe all applicants must be given the opportunity to withhold consent related to each third party the program would like to contact. Therefore, we propose that if programs plan to seek third party verification from one or more entities regarding an applicant's eligibility, staff must inform the applicant about each entity that they intend to contact and have the applicant sign a consent form permitting the program to contact each of the specified third parties; this would provide applicants the opportunity to withhold their consent for third party verification from one or more entities. If applicants do not sign the consent form, the Head Start program would not be allowed to contact that entity and the applicant would remain responsible for providing appropriate documentation. We also propose that when programs contact third parties, they should limit the information discussed and questions posed to the third party to the information necessary to obtain the required eligibility information. Programs should be especially sensitive to any potential domestic violence issues prior to seeking verification of the required eligibility information.
In paragraph (f), we propose to require agencies to verify and document categorical eligibility before a pregnant woman or child is determined to be eligible for Head Start or Early Head Start participation. We propose to require the pregnant woman or the child's parent, guardian or other person(s) seeking services for the child who has knowledge of the family's situation to submit information to the program concerning the family's categorical eligibility. As proposed, verification of categorical eligibility by the program must include examination of the relevant documents submitted by the pregnant woman or family for the relevant type of categorical eligibility, as described below. If a pregnant woman or child could qualify for Head Start or Early Head Start participation based on more than one eligibility criterion, then the program should enroll the child under the criterion that is easiest to verify and document; it would not be necessary to verify and document multiple eligibility criteria.
The first requirement in proposed paragraph (f)(1) addresses categorical eligibility based on eligibility for public assistance. This proposal aligns with the requirement currently at § 1305.4(d), which specifies that verification of family income “must include examination of * * * documentation showing current status as recipients of public assistance.” Under proposed paragraph (f)(1), we require agency staff to examine any official documents submitted for the purpose of demonstrating that the pregnant woman, the child, or child's parent or guardian, is eligible or, in the absence of child care, would potentially be eligible for public assistance. Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for verifying public assistance eligibility or receipt status. Since the substance of this proposed requirement is based on current practice by many grantees, we do not believe this would impose a large burden.
Under proposed paragraph (f), in cases in which a child is in foster care, we add a new requirement for agency staff to review a copy of a court order, other legal or government-issued document, or a statement of a State, Tribal, or local child welfare official demonstrating the child is in foster care. The current regulations do not require agencies to verify or document foster care status. Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for verifying foster care status through their collaborations with local child welfare agencies. Since the substance of this requirement is based on current practice by many grantees, we do not believe this proposed requirement would impose a large burden.
Proposed paragraph (f) also adds a new provision to address cases when documents are not submitted to provide evidence of a child's status as homeless. Under proposed paragraph (f)(3), in lieu of other source documents, the program could substitute a written statement of a program staff member certifying that he or she has made reasonable effort to confirm a declaration by the parent, guardian, or other person(s) seeking services for the child that the child is a “homeless child,” as defined in § 1305.2(i). As stated previously, the 2007 reauthorization added homeless children as a category of individuals that are categorically eligible for enrollment. The current regulations do not specify how agencies should verify
Paragraph (f) proposes that, before a child or pregnant woman is determined to be eligible on the basis of categorical eligibility, the pregnant woman or the child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's situation must provide the program with: (1) A copy of official documents demonstrating current eligibility or receipt of public assistance benefits or services by the pregnant woman's or the child's family; (2) a copy of the court order or other legal or government-issued document or statement of government child welfare official demonstrating the child is in foster care; or (3) a copy of any other source document that establishes categorical eligibility. Under the proposal, in place of the foregoing documents, the program could substitute a written statement of a program staff member certifying that the staff member has made reasonable efforts to confirm a child is homeless, as defined in proposed § 1305.2(i). The lack of documentation of homelessness should not be a barrier to enrollment. Under the proposal, when appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, programs could seek information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, and document the names, titles, and relationship to the applicant in the participant's record. As proposed, programs also could seek third party information in cases where documents are not submitted to prove a claim that a pregnant woman or family has no income. We propose that if programs plan to seek third party verification from one or more entities regarding an applicant's eligibility, staff must inform the applicant about each entity that they intend to contact. In addition, the applicant would be required to sign a consent form permitting the program to contact specified third parties; this would provide applicants the opportunity to withhold their consent for third party verification from one or more entities. An applicant must be given the opportunity to withhold consent related to each entity the program would like to contact. If applicants do not sign the consent form the Head Start program could not contact that entity and the applicant would remain responsible for providing appropriate documentation. We propose that when programs contact third parties, they should limit the information discussed and questions posed to the third party to the information necessary to obtain the required eligibility information. Programs should be especially sensitive to any potential domestic violence issues prior to seeking verification of the required eligibility information.
In proposed paragraph (g), we strengthen and supplement current regulatory requirements related to eligibility certification and documentation to respond to GAO's finding that “the lack of documentation made it virtually impossible to determine whether only under-income children were enrolled in spots reserved for under-income children” and its recommendations that we establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility, such as maintaining income documentation provided by the applicant (
First, this proposed paragraph requires all Head Start and Early Head Start programs to keep an eligibility determination record for each child or pregnant woman as part of the record maintained by the agency on that individual. Proposed paragraph (g)(1) requires this record to include copies of all documents submitted by a pregnant woman or persons seeking services on behalf of a child to the program by such persons or other persons relating to the pregnant woman's or child's eligibility for services and any staff member's notes recording any other information related to eligibility received from any source.
Proposed paragraph (g)(2) requires the record to include a copy of the statements and documents required under proposed paragraphs (e) and (f) (related to income and categorical eligibility). Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for maintaining copies of documents verified during eligibility determination. Since the substance of this requirement is based on current practice by some grantees, we do not believe this proposed requirement would impose a large burden.
Proposed paragraph (g)(3) requires that the record also includes a signed and dated statement by the person seeking services,
Proposed paragraph (g)(4) requires the record to include documentation establishing that an agency staff member has sought to verify the accuracy of the information on eligibility provided to
Proposed paragraph (g)(5) requires the eligibility determination record to include documentation of the specific eligibility criterion under which the child or pregnant woman was determined eligible for participation. As stated above, under the proposed rule, if a pregnant woman or child could qualify for Head Start or Early Head Start participation based on more than one eligibility criterion, then the program should enroll the child under the criterion that is easiest to verify and document; it would not be necessary to verify and document multiple eligibility criteria. This includes a record of the income level or relevant eligibility category, as addressed in proposed paragraphs (b) and (c). The first criterion under which the child or pregnant woman could be determined eligible is based on having income below the income guideline for the family size, with the family size used documented, as described in proposed paragraph (b). The second criterion under which the child or pregnant woman could be determined eligible is whether the child's family or pregnant woman is eligible or, in the absence of child care, would potentially be eligible for public assistance, as described in proposed paragraph (c)(1). The third criterion, as stated in proposed paragraph (c)(2), is based on being a homeless child, as defined in proposed § 1305.2(i). The record also would need to include the provision of proposed § 1305.2(i) under which the child was determined to be homeless. The fourth criterion is whether the child is in foster care, as proposed in paragraph (c)(3). The fifth criterion, as proposed in paragraph (b)(2), is being a pregnant woman or child in the area served who would benefit from such programs but who is not eligible otherwise for services (total enrollment in this category not to exceed 10 percent of the enrollment slots). The sixth criterion under which the pregnant woman or child could be determined eligible, which is described in proposed paragraph (b)(3), is whether the pregnant woman or child's family has income over 100 percent to 130 percent of the income guidelines (total enrollment in this category not to exceed 35 percent of the enrollment slots, in addition to any slots filled under paragraph (b)(2)). The final proposed criterion under which the pregnant woman or child could be determined eligible is whether the pregnant woman or child meets alternative eligibility criteria as permitted under § 1305.4(d) or section 645(a)(2) of the Act.
Proposed paragraph (g)(6) also adds a new Head Start staff certification requirement in direct response to GAO's aforementioned recommendation to establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility.” The proposed paragraph requires the record to include a signed and dated statement by the program staff person who made the eligibility determination certifying that the information on eligibility in the file is accurate to the best of the person's knowledge, and based on that information, the person has determined the pregnant woman or child to be eligible for services.
Finally, proposed paragraph (g)(7) specifies the record retention and access requirements for the documents and certifications maintained in each child and pregnant woman's record under this paragraph. These record retention and access practices must be consistent with section 647 of the Head Start Act and the uniform administrative requirement regulations regarding HHS grant awards implemented at 45 CFR 74.53 for awards and subawards to institutions of higher education, hospitals, other nonprofit organizations, and commercial organizations and 45 CFR 92.42 for grants and cooperative agreements to State, local, and Tribal governments. Among other requirements, Section 647 states that all grant recipients to “keep such records as the Secretary shall prescribe” and provide “access for the purpose of audit and examination to any books, documents, papers, and records of the recipients that are pertinent to the financial assistance received” under the Head Start Act. A key requirement explained in both 45 CFR 74.53 and 92.42 is that documents shall be retained for a period of three years. Additionally, both of these sections state requirements related to the right of access by the HHS awarding agency, the U.S. Comptroller General, or any of their authorized representatives, to any pertinent books, documents, papers, or other records of recipients in order to make audits, examinations, excerpts, transcripts and copies of such documents. We have included a reference to these longstanding Departmental policies in order to respond to GAO's concerns that agencies were not required to maintain documents related to enrollment. This requirement will ensure that documents and certifications required to be maintained under this paragraph are retained for the appropriate amount of time and are accessible to the Office of Head Start and other Federal agencies, such as the HHS Inspector General and the GAO, as needed for monitoring, audit, investigative, and other purposes.
Proposed paragraph (h) addresses the establishment of agency policies regarding violation of eligibility determination regulations, policies, and procedures. Under this paragraph, we propose that all Head Start and Early Head Start agencies must establish policies and procedures describing the actions that will be taken against agency staff who commit intentional violations of Federal and agency eligibility determination regulations, policies and procedures including enrolling children and pregnant women who staff have not documented as eligible to participate in the program. We believe this proposed requirement is necessary in order to prevent future incidents of fraud like those found in the GAO investigation and to make clear to all agency staff the legal consequences of intentionally committing enrollment fraud.
Proposed paragraph (i), “Training,” requires that all Head Start and Early Head Start agencies train all governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations on Federal and agency eligibility regulations, policies, and procedures, including verification, certification, and documentation requirements. The requirements in proposed paragraph (i) are an extension of current requirements stated at § 1304.50(g)(1) that grantee and delegate agencies must have written policies that define the roles and responsibilities of the governing body
We have communicated to the public and to grantees on several occasions that we would be addressing GAO's findings by strengthening our training requirements. For example, we told GAO after it shared its investigation findings that we would “make sure that grantee staff received training regarding the proper way to validate income documentation;” this assurance was documented and shared publicly in GAO's May 18, 2010 testimony in the section entitled “Corrective Action Briefing.” In addition, Secretary Sebelius provided notice to all grantees through her May 17, 2010 letter that we would be developing new regulations to address “staff training on eligibility criteria and procedures.”
Proposed paragraph (i) specifies that the training must be conducted within 30 days following the effective date of this final rule, and within 30 days of hiring or beginning of tenure of new governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations. We propose to require agencies to develop policies regarding how often such training would be provided after the initial training to ensure that governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations are aware of all current eligibility determination regulations, policies and procedures. The National Center on Program Management and Fiscal Operations will be developing training assistance on this topic to assist grantees.
We propose to require the training to include explanations of the legal consequences for individuals and agencies that commit fraud related to eligibility determinations, including by intentionally enrolling children or pregnant women that they know are ineligible. Examples of legal consequences to be explained during training include the disallowance of the agency's Head Start or Early Head Start funds; the determination of deficiencies through the monitoring review process; the suspension or termination of the grant; or individual consequences for the staff involved who intentionally commit fraud. We also would require such training to address methods and strategies for obtaining facts necessary for complete and accurate eligibility determinations. These methods and strategies would need to address treating families with dignity and respect and give due regard for possible issues of domestic violence, stigma, and privacy. We propose to require all agencies to maintain ongoing records of training sessions. Examples of information that would need to be documented include: The dates sessions were conducted, instructor names and titles, and attendee names.
This proposed rule establishes new information collection requirements in § 1305.4(b), (e), (f), and (g). As required by the Paperwork Reduction Act of 1995, codified at 44 U.S.C. 3507, the Administration for Children and Families will submit a copy of these sections to the Office of Management and Budget (OMB) for review and they will not be effective until they have been approved and assigned a clearance number.
We estimate the costs of implementing these proposed requirements would be approximately $132,188 annually. We calculated this estimate by multiplying the average hourly salary for family services coordinators ($20.59) by the estimated total burden hours (6,420).
With respect to these provisions, the Administration for Children and Families will consider comment by the public on this collection of information in the following areas:
• Evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility;
• Evaluating the accuracy of ACF's estimate of the proposed collection of information, including the validity of the methodology and the assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology,
OMB is required to make a decision concerning the collection of information contained in this proposed regulation between 30 and 60 days after publication of this document in the
The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), this proposed rule will not result in a significant economic impact on a substantial number of small entities.
Specifically, as noted under the Paperwork Reduction Act section of this preamble, we estimate the cost of implementing the proposed new reporting requirements would be approximately $132,188 annually, which when applied to all 1,600 grantees nationally, results in a cost per grantee of less than $85. In developing this estimate, we assumed that each of the 1,600 Head Start and Early Head Start grantees would spend an additional four hours beyond what they spend currently to conduct the proposed new eligibility verification, certification, and documentation procedures, as required by paragraphs (e) through (g). Included in our estimated annual costs are the minimal costs incurred by those grantees that choose to serve additional pregnant women and children per the authority granted at section 645(a)(1)(B)(iii)(II) of the Head Start Act, and therefore would be required to comply with the annual reporting requirements described in section 645(a)(1)(B)(iv) of the Head Start Act and paragraph (b)(3)(ii) of this proposed rule. Since no grantees have taken the opportunity to serve additional pregnant women and children per the authority granted at section 645(a)(1)(B)(iii)(II) of the Head Start Act to date, our reasonable expectation is that approximately 10 grantees per year might choose to use this authority in the future, at a total estimated cost of $412 per year.
We request public comments on whether we have adequately considered all costs for small entities.
Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this Notice of Proposed Rulemaking is consistent with these priorities and principles. These regulations incorporate statutory changes to the Head Start program enacted in the Improving Head Start for School Readiness Act of 2007 and strengthen procedures to determine, verify, certify, and maintain records regarding eligibility for Head Start and Early Head Start program enrollment. We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the criteria for a significant regulatory action under E.O. 12866.
ACF does not believe there would be a significant economic impact from this proposed regulatory action. Based on our estimate described under the Paperwork Reduction Act section of this preamble, the total cost would fall well below the $100 million threshold. The estimated total cost of implementation of these rules for all grantees is approximately $132,188 annually.
Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If an agency must prepare a budgetary impact statement, section 205 requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule consistent with the statutory requirements. Section 203 requires a plan for informing and advising any small government that may be significantly or uniquely impacted. The Department has determined that this proposed rule would not impose a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.
This regulation is not a major rule as defined in 5 U.S.C. Chapter 8.
Executive Order 13132, Federalism, requires that Federal agencies consult with State and local government officials in the development of regulatory policies with federalism implications. This proposed rule will not have substantial direct impact 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, HHS has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Education of disadvantaged, Grant programs/social programs, Individuals with disabilities.
For the reasons set forth in the preamble, we propose to amend Part 1305 of 45 CFR Chapter XIII as follows:
1. The authority citation for part 1305 is revised to read as follows:
42 U.S.C. 9801
2. Amend § 1305.2 by:
a. Revising paragraph (g)
b. Redesignating paragraphs (i) through (s) as paragraphs (j) through (t);
b. Adding a new paragraph (i); and
c. Revising newly redesignated paragraphs (k) and (m).
The revisions and addition read as follows:
(g) Head Start or Early Head Start eligible means a child or pregnant woman who meets the requirements for age and family income or categorical eligibility or, if applicable, the requirements established by a grantee under section 645(a)(2) of the Head Start Act or by a Head Start program operated by an Indian Tribe under 45 CFR 1305.4(d).
(i) Homeless children:
(1) Means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of 42 U.S.C. 11302(a)(1)); and
(2) Includes—
(i) Children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;
(ii) Children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of 42 U.S.C. 11302(a)(2)(C));
(iii) Children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and
(iv) Migratory children (as such term is defined in 20 U.S.C. 6399) who qualify as homeless for the purposes of this part because the children are living in circumstances described in paragraphs (i)(2)(i) through (iii) of this section.
(k) Income guidelines means the official poverty line specified in section 637(19) of the Head Start Act.
(m) Low-income family means a family whose total income before taxes is equal to, or less than, the income guidelines.
3. Revise § 1305.4 to read as follows:
(a)
(1) To be age eligible for Early Head Start services:
(i) A child must be an infant or toddler between the ages of zero and three years old.
(ii) A pregnant woman may be any age.
(2) To be age eligible for Head Start services, a child must be at least three years old by the date used to determine eligibility for public school in the community in which the Head Start program is located and not older than the age of required school attendance, except in cases where the Head Start program's approved grant provides specific authority to serve younger children. Examples of such exceptions are programs serving children of migrant and seasonal farmworker families.
(b)
(1) Age eligible children and pregnant women from low-income families shall be eligible for participation in Head Start and Early Head programs.
(2) To a reasonable extent, but not to exceed 10 percent of participants, participants may include age eligible children and pregnant women in the area served who would benefit from Head Start or Early Head Start programs, who are not eligible under paragraphs (b)(1) or (c) of this section.
(3) From the area served, an additional 35 percent of participants may include pregnant women and age eligible children whose families have incomes over 100 percent but below 130 percent of the income guidelines who also are not eligible under paragraphs (b)(1) or (c) of this section, if:
(i) Prior to serving the children and pregnant women eligible under paragraph (b)(3) of this section, the agency involved establishes and implements outreach, prioritization, and enrollment policies and procedures that ensure such agency is meeting the needs of children and pregnant women eligible under paragraphs (b)(1) or (c) of this section and children with disabilities eligible under paragraph (b)(2) of this section; and
(ii) Any agency serving additional children and pregnant women under this paragraph must report annually to the Secretary the information required at section 645(a)(1)(B)(iv) of the Head Start Act.
(c)
(1) The pregnant woman or the child's family is eligible or, in the absence of child care, would potentially be eligible for public assistance;
(2) The child is homeless, as defined in § 1305.2(i); or
(3) The child is in foster care, as defined in § 1355.20(a).
(d)
(1) All children from Indian and non-Indian families living on the reservation that meet the low-income guidelines or are categorically eligible who wish to be enrolled in the program are served by the program;
(2) All children from income-eligible or categorically-eligible Indian families native to the reservation living in non-reservation areas, approved as part of the Tribe's service area, who wish to be enrolled in the program are served by the program. In those instances in which the non-reservation area is not served by another Head Start or Early Head Start program, the Tribe must serve all of the income-eligible and categorically-eligible Indian and non-Indian children whose families wish to enroll them in the program prior to serving over-income children.
(3) The Tribe has the resources within its grant or from other non-Federal sources to enroll children from families whose incomes exceed the low-income guidelines or are not categorically eligible without using additional funds from HHS intended to expand Head Start or Early Head Start services; and
(4) At least 51 percent of the children to be served by the program are from families that meet the income-eligibility guidelines or are categorically eligible.
(5) Programs which meet the conditions of this paragraph (d) must annually set criteria that are approved by the Policy Council and the Tribal Council for selecting over-income children who would benefit from such a program.
(e)
(f)
(i) A copy of official documents demonstrating that the pregnant woman or the child, child's parent, or guardian, is eligible, or in the absence of child care, would potentially be eligible for public assistance;
(ii) A copy of the court order or other legal or government-issued document or statement of a government child welfare official demonstrating the child is in foster care; or
(iii) A copy of any other source document that establishes categorical eligibility.
(2) In place of the foregoing documents, the program can substitute a written statement of a program staff member certifying that the staff member has made reasonable efforts to confirm a child is homeless, as defined in § 1305.2(i). The lack of documentation of homelessness should not be a barrier to enrollment. When appropriate, in cases in which no documentation regarding the eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, programs may seek information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, and document the names, titles, and relationship to the applicant in the participant's record. Programs also may seek third party information in cases where documents are not submitted to prove a claim that a pregnant woman or family has no income. If programs plan to seek third party verification from one or more entities regarding an applicant's eligibility, staff must inform the applicant about each entity that they intend to contact and the applicant must sign a consent form permitting the program to contact each of the specified third parties; this provides applicants the opportunity to withhold their consent for third party verification related to each entity the program would like to contact. If applicants do not sign the consent form the Head Start program may not contact that entity and the applicant remains responsible for providing appropriate documentation. When programs contact third parties, they should limit the information discussed and questions posed to the third party to the information necessary to obtain the required eligibility information. Programs should be especially sensitive to any potential domestic violence issues prior to seeking verification of the required eligibility information.
(g)
(1) Copies of all documents submitted by a pregnant woman or persons seeking services on behalf of a child to the program by such persons or other persons relating to the pregnant woman's or child's eligibility for services and any staff member's notes recording any other information related to eligibility received from any source;
(2) A copy of the statements and documents required under paragraphs (e) and (f) of this section;
(3) A signed and dated statement by the person seeking services certifying that the documents and information that the person provided concerning eligibility are accurate to the best of the person's knowledge;
(4) Documentation establishing that an agency staff member has sought to verify the accuracy of the information on eligibility provided to the agency by:
(i) Conducting an in-person interview with the pregnant woman or the child's parent, guardian, or other person(s), seeking services for the child who has knowledge of the family's situation; and
(ii) When appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or the child's family or regarding the categorical eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, seeking information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, whose names, titles, and affiliations will be documented in the record, and the applicant's signed consent form permitting the program to contact each particular third party, as required under paragraphs (e) and (f) of this section;
(5) A record of the eligibility criterion under which the pregnant woman or child was determined eligible as:
(i) Having income below the income guideline for the family size, with the family size used documented;
(ii) Being eligible or, in the absence of child care, being potentially eligible for public assistance;
(iii) Being a homeless child, including the specific provision of § 1305.2(i) under which the child was determined to be homeless;
(iv) Being a child in foster care;
(v) Being a pregnant woman or child in the area served who would benefit from such programs but who is not otherwise eligible for services (total enrollment in this category not to exceed 10 percent of the enrollment slots);
(vi) Being a pregnant woman or child from a family with income over 100 percent but below 130 percent of the income guidelines (total enrollment in this category not to exceed 35 percent of the enrollment slots, in addition to any slots filled under paragraph (b)(2) of this section; or
(vii) Meeting alternative eligibility criteria as permitted under paragraph (d) of this section or section 645(a)(2) of the Head Start Act; and
(6) A signed and dated statement by the program staff person who made the
(7) Retention and access practices for the eligibility determination record for each pregnant woman or child described under this paragraph must be consistent with section 647 of the Head Start Act and the uniform administrative requirement regulations regarding HHS grant awards implemented at 45 CFR 74.53 for awards and subawards to institutions of higher education, hospitals, other nonprofit organizations, and commercial organizations and 45 CFR 92.42 for grants and cooperative agreements to State, local, and Tribal governments.
(h)
(i)
(1) Explanation of the legal consequences for individuals and agencies that commit fraud related to eligibility determination; and
(2) Information on methods and strategies for obtaining facts necessary for complete and accurate eligibility determinations. Such methods and strategies must address treating families with dignity and respect and give due regard for possible issues of domestic violence, stigma, and privacy.
Federal Communications Commission.
Proposed rule.
The Commission has before it a petition for rulemaking filed by NewsChannel 5 Network, LLC, the licensee of station WTVF(TV), channel 5, Nashville, Tennessee, requesting the substitution of channel 25 for channel 5 at Nashville. NewsChannel 5 lost service to many of its analog viewers when the station transitioned to digital operations and now requests this channel substitution in order to permanently resume service to these viewers.
Comments must be filed on or before April 18, 2011, and reply comments on or before May 2, 2011.
Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Christopher G. Tygh, Esq., Covington & Burling LLP, 1201 Pennsylvania Avenue, Washington, DC 20004-2401.
Joyce L. Bernstein,
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 11-29, adopted February 18, 2011, and released February 23, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC, 20554. This document will also be available via ECFS (
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Television, Television broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
2. Section 73.622(i), the Post-Transition Table of DTV Allotments under Tennessee, is amended by adding channel 25 and removing channel 5 at Nashville.
Federal Communications Commission.
Proposed rule.
In this document, the Commission takes an initial step to implement the Twenty-First Century Communications and Video Accessibility Act of 2010, by seeking comment on the mandated reinstatement of video description rules that would apply to MVPDs and network-affiliated broadcasters.
Comments must be submitted by interested parties on or before April 18, 2011. Reply comments must be submitted no later than May 17, 2011. Written PRA comments on the proposed information collection requirements contained herein must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before May 17, 2011.
You may submit comments, identified by MB Docket No. 11-43, FCC 11-36, by any of the following methods:
•
•
•
•
In addition to filing comments with the Secretary, a copy of any PRA comments on the proposed collection requirements contained herein should be submitted to the Federal Communications Commission via e-mail to
For additional information, contact Lyle Elder,
This is a summary of document FCC 11-36, adopted March 2, 2011 and released March 3, 2011. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC, 20554. These documents will also be available via ECFS (
This document contains proposed information collection requirements. As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection(s). Public and agency comments are due May 17, 2011.
Comments should address: (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 estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The proposed information collection requirements consist of:
Pursuant to proposed 47 CFR 79.3(d), a video programming provider may petition the Commission for a full or partial exemption from the video description requirements based upon a showing that they would be economically burdensome.
Petitions for exemption must by filed with the Commission, placed on Public Notice, and be subject to comment from the public.
Section 79.3(e) of the proposed rules provides that a complaint alleging a violation of the video description rules may be transmitted to the Commission by “any reasonable means” that would best accommodate the complainant's disability, and that each complaint must include:
The name and address of the complainant;
The name and address of the broadcast station against whom the complaint is alleged and its call letters and network affiliation, or the name and address of the MVPD against whom the complaint is alleged and the name of the network that provides the programming that is the subject of the complaint;
A statement of facts sufficient to show that the video programming distributor has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;
The specific relief or satisfaction sought by the complainant;
The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, or some other method that would best accommodate the complainant's disability); and
A certification that the complainant attempted in good faith to resolve the dispute with the broadcast station or MVPD against whom the complaint is alleged.
The Commission is seeking OMB approval for the proposed information collection requirements.
1. In compliance with the recently enacted Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Communications and Video Accessibility Act” or “CVAA”),
2. The Commission's rules required large-market broadcast affiliates of the top four national networks and multichannel video programming distributors (“MVPDs”) with more than 50,000 subscribers to provide video description.
3. We seek comment on the modifications to the rules required by the CVAA. Notably, these modifications include the exemption of “live or near-live” programming from the rules. We seek comment on the definition of “near-live,” and propose that programs produced within 24 hours of their first airing be considered “near-live” under the rules. We also seek information about the number of hours of non-exempt programming provided by the top nonbroadcast programming
4. In 1996, at Congress's direction, the Commission issued a report on the use of video description in video programming.
[t]he comments of the American Council of the Blind contained more than 250 e-mails and letters of support for rules, which explained how video description enhances the understanding of blind and low vision people of television programming and cultural behavior such as body language, and gives them a feeling of independence. One commenter said that * * * “[w]hether entertaining, educational or cultural, television has become an integral part of American life. I, and other blind and visually impaired people, have always participated in television viewing, but with [video description], we are finally participating equally.” Helen Harris, founder of a description service, says that “[v]ideo description effectively bridges the gap between the blind and mainstream society by creating a shared experience which leaves the blind with an increased sense of normalcy in their lives.”
Five months after the rules went into effect, they were vacated by the United States Court of Appeals for the District of Columbia Circuit on the ground that the Commission lacked sufficient authority to promulgate video description rules.
5. On October 8, 2010, President Obama signed the CVAA,
6. Section 713(f)(1) of the Communications Act, as added by the CVAA, states that the Commission shall, after a rulemaking, reinstate its video description regulations contained in the Implementation of Video Description of Video Programming Report and Order (15 F.C.C.R. 15,230 (2000)), recon. granted in part and denied in part, (16 F.C.C.R. 1251 (2001)), modified as provided in paragraph (2).
Consistent with Congress' directive, we will reinstate the Commission's 2000 rules on October 8, 2011 with the modifications required by the CVAA.
• Affiliates of the top four national networks
• To count toward the requirement, the programming must not have been previously aired with video description, on that particular MVPD channel or broadcast station, more than once.
• Any broadcast station, regardless of its market size, affiliated or otherwise associated with any television network, must “pass through” video description when the network provides it and the station has the technical capability necessary to do so.
• Complaints alleging a failure to comply with these rules may be filed with the Commission by any viewer, and the Commission will act to resolve such complaints in consultation with the video programming distributor.
7. As discussed above, under the reinstated rules, certain broadcast stations and MVPDs will have an obligation to provide video description of some of the programming they provide. Specifically, affiliates of ABC, CBS, Fox, and NBC that are located in the 25 television markets with the largest number of television households must provide 50 hours per calendar quarter of video-described programming during prime time, or at any time if it is children's programming. To count toward this 50-hour requirement, video-described programming must be airing either the first or second time on the station; that is, a video described program may be counted toward the 50 hours when it is originally aired and once more when it is re-run. Although we anticipate that much of the programming aired with video description will be newly produced, we propose that the reinstated rules permit stations to count any program that they are airing for the first or second time with video description after the reinstated rules become effective, even if the program has previously been aired on that station. Similarly, a station may count programming toward its 50 hour obligation even if that programming has aired elsewhere with description, so long as it is airing with description for the first or second time on that station. The rules are identical for MVPDs with 50,000 or more subscribers, except that they apply to the programming of each of the top five national non-broadcast networks carried by the MVPDs.
8. Although the CVAA requires reinstatement of the rules largely as adopted by the Commission in 2000, the Commission does have some discretion in determining the stations, MVPDs, and networks to which they apply. We therefore seek comment on these issues, as discussed below.
9. As established in the 2000 rules, the broadcast stations subject to the requirement to provide video description
10. The relative size of markets often changes over time. We want to ensure that the rules apply to the top 25 markets, as required by the CVAA. At the same time, we seek to ensure that regulatees and the public at large have adequate advance notice regarding which broadcast stations will be subject to the requirement to provide video description, and to avoid undue disruption for audiences who come to rely upon video described programming. Further, we recognize that a significant amount of video described programming (potentially all the programming required under the rules) will be provided by national network programmers and passed through by local stations, even in the top 25 markets. Because of the “pass-through” obligations of network stations outside the top 25 markets, discussed below, there may be little to no difference in the amount of video described programming available from affiliates of the top 4 networks in larger and smaller markets.
11. The CVAA mandates that the Commission extend the video description requirements to the top 60 markets after filing a report to Congress on the state of the video description market, as discussed above,
12. In order to implement the requirement that MVPDs provide video description, we must also update the “top 5 national nonbroadcast networks that have at least 50 hours per quarter of prime time programming that is not exempt.”
13. Ratings of nonbroadcast networks often change over time. We want to ensure that the rules apply to the top five national nonbroadcast networks, as required by the CVAA. At the same time, we also want to ensure that regulatees and the public at large have adequate advance notice regarding which networks will be subject to the rules, and to avoid undue disruption for audiences who will come to rely upon video described programming. In light of these considerations, we seek comment on whether we should reconsider the ranking of the top five nonbroadcast networks at certain intervals to better reflect current market conditions and, if so, what those intervals should be.
14. As noted above, under our previous video description rule, broadcasters affiliated with any network and all MVPDs were required to pass through any video description that they received from a broadcast or cable network or, in the case of MVPDs, from a broadcast station they carried, whenever they had the technical capability on the relevant channel to pass through the video description, unless they were using the technology necessary to provide such video description for another purpose related to the programming that would conflict with providing the video description.
15. In the
16. Transmission of multiple audio tracks, even digitally, may require the use of additional equipment by broadcasters and MVPDs. We seek comment on what is needed for broadcast stations and MVPDs to have the “technical capability necessary” to pass through video description of digital programming, the extent to which affected entities already have any necessary equipment or have incentives to upgrade to this equipment for other purposes, and the cost of such equipment and any other necessary upgrades. Specifically, we seek comment on the costs of providing additional audio tracks once an entity is technically capable of providing a secondary digital audio track. What standards should we use to take these costs into account when determining whether a distributor has “the technical capability necessary to pass through the video description”?
17. The CVAA requires us to reinstate the revised video description rules “on the day that is 1 year after the date of enactment,”
18. We propose that on January 1, 2012, 85 days after the reinstatement of the rules,
19. We seek comment on these phase-in proposals. Will this compliance schedule provide sufficient time for covered entities to begin providing and passing through video described programming? Given the limited number of hours of video description required at this stage, we do not expect any significant delay in compliance as a result of a need to negotiate with rights holders. We seek comment on this conclusion. We note that although the CVAA deferred certain implementation issues to the Commission, to a great extent the entities that will be subject to our reinstated rules have been aware of the pending requirements since at least the enactment of the CVAA on October 8, 2010.
20. The CVAA recognizes the unique difficulties of providing video description for programming that is produced live or shortly before it is first aired, i.e., programming that is “live or near-live.” As a result, the statute explicitly states that the regulations we adopt “shall not apply to live or near-live programming,” and directs us to take this exemption into consideration when determining whether a non-broadcast network is covered by the video description rules.
21. Section 713(f)(2)(E) of the Communications Act, as added by the CVAA, states that: “[t]he regulations shall not apply to live or near-live programming.”
22. Section 713(f)(2)(C) of the Communications Act, as added by the CVAA, states that
23. The Commission previously determined in the closed captioning context that compliance would constitute an “undue burden” for an entity, therefore justifying an individual exemption from the rule, upon a showing that the captioning requirements would result in “significant difficulty or expense” for the petitioner. Commission rules explain that such exemptions may be granted for “a channel of video programming, a category or type of video programming, an individual video service, a specific video program or a video programming provider.” 47 CFR 79.1(f)(1). The factors to be taken into consideration when making an exemption determination under this section are: (1) The nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner.
24. What are the anticipated ongoing costs, per program or hour described? What, on average, is the total cost to produce a single program or hour of prime time programming on the major networks covered by the requirement to provide video description? Will this requirement add any ongoing costs other than the description itself? Comments from both the purchasers and producers of video description would be of great value in understanding these costs.
25. For those entities subject to the requirement to provide (and not merely pass through) video description, we find it unlikely that the modest requirement of 50 hours per quarter will be economically burdensome; as discussed above, in the first phase this requirement only applies to the top broadcast network affiliates in the biggest markets, MVPDs serving more than 50,000 subscribers, and the most popular nonbroadcast networks. Are there any particular concerns regarding the economic burden of pass-through obligations, which will apply to a much larger number of entities than the requirement to provide video description? We seek comment on these issues.
26. Section 713(f)(2)(D) of the Communications Act, as added by the CVAA, provides that
27. Section 713(f)(2)(A) of the Communications Act, as added by the CVAA, states that “[t]he regulations shall apply to video programming, as defined in subsection (h), insofar as such programming is transmitted for display on television in digital format.”
28. A separate issue, exclusive to digital broadcasting, is the ability of digital television broadcasters to transmit multiple streams of programming on a single channel. We propose to consider only programming on the primary programming stream when measuring a broadcast station's compliance with the “50 described hours” requirement, unless the station carries a top-four national network on another stream. How should we apply the rules when a station is affiliated with more than one network? In situations in which a broadcast station carries another top-four network's programming on a secondary stream, we propose to apply the rules in the same manner as if the network programming were carried by a separate station. We seek comment on this proposal. We also propose to impose the pass-through requirement, discussed above, on all network-provided programming carried on all of an affiliated station's programming streams. This approach would ensure the availability of described programming to the widest possible audience. In particular, this requirement would ensure that those who subscribe to an MVPD service that only carries the broadcast station's primary stream would have access to described programming. We seek comment on these proposals.
29.
30.
31.
32.
33.
34.
35.
36. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
37.
38. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
•
•
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Effective December 28, 2009, all hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
39.
40.
41.
42. With respect to the
43. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)
44. This
45. The authority for the action proposed in this rulemaking is contained in the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and Sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 303, 307, 309, 310, and 613.
46. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules if adopted.
47.
48. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
49.
50. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
51. The second category of Other Telecommunications consists of firms “primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.”
52.
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55.
56.
57.
58. The
59. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
60. The requirements proposed in the
None.
61.
62.
Civil defense, Communications equipment, Defense communications, Education, Equal employment opportunity, Foreign relations, Mexico, Political candidates, Radio, Reporting and recordkeeping requirements, Television.
Cable television.
For the reasons discussed in the preamble, the Federal Communications Commission Proposes 47 CFR parts 73 and 79 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
2. Section 73.682 is amended by revising paragraph (d) to read as follows:
(d)
1. The authority citation for part 79 continues to read as follows:
47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, 310, 613.
2. Section 79.3 is revised to read as follows:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(b) The following video programming distributors must provide programming with video description as follows:
(1) Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC), and that are licensed to a community located in the top 25 DMAs, as determined by Nielsen Media Research, Inc. as of January 1, 2011, must provide 50 hours of video description per calendar quarter, either during prime time or on children's programming, on each programming stream on which they carry one of the top four commercial television broadcast networks;
(2) Television broadcast stations that are affiliated or otherwise associated with any television network must pass through video description when the network provides video description and the broadcast station has the technical capability necessary to pass through the video description, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description;
(3) Multichannel video programming distributors (MVPDs) that serve 50,000 or more subscribers must provide 50 hours of video description per calendar quarter during prime time or children's programming, on each channel on which they carry one of the top five national nonbroadcast networks, as defined by an average of the national audience share during prime time of nonbroadcast networks, as determined by Nielsen Media Research, Inc., for the time period October 2009-September 2010, that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under these rules; and
(4) Multichannel video programming distributors (MVPDs) of any size:
(i) Must pass through video description on each broadcast station they carry, when the broadcast station provides video description, and the channel on which the MVPD distributes the programming of the broadcast station has the technical capability necessary to pass through the video description, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description; and
(ii) Must pass through video description on each nonbroadcast network they carry, when the network provides video description, and the channel on which the MVPD distributes the programming of the network has the technical capability necessary to pass through the video description, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description.
(c)
(2) In order to meet its fifty-hour quarterly requirement, a broadcaster or
(3) Once a commercial television broadcast station as defined under paragraph (b)(1) of this section has aired a particular program with video description, it is required to include video description with all subsequent airings of that program on that same broadcast station, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description.
(4) Once an MVPD as defined under paragraph (b)(3) of this section:
(i) Has aired a particular program with video description on a broadcast station it carries, it is required to include video description with all subsequent airings of that program on that same broadcast station, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description; or
(ii) Has aired a particular program with video description on a nonbroadcast network it carries, it is required to include video description with all subsequent airings of that program on that same nonbroadcast network, unless it is using the technology used to provide video description for another purpose related to the programming that would conflict with providing the video description.
(5) In evaluating whether a video programming distributor has complied with the requirement to provide video programming with video description, the Commission will consider showings that any lack of video description was de minimis and reasonable under the circumstances.
(d)
(2) The petitioner must support a petition for exemption with sufficient evidence to demonstrate that compliance with the requirements to provide programming with video description would be economically burdensome. The term “economically burdensome” means imposing significant difficulty or expense. The Commission will consider the following factors when determining whether the requirements for video description would be economically burdensome:
(i) The nature and cost of providing video description of the programming;
(ii) The impact on the operation of the video programming provider;
(iii) The financial resources of the video programming provider; and
(iv) The type of operations of the video programming provider.
(3) In addition to these factors, the petitioner must describe any other factors it deems relevant to the Commission's final determination and any available alternative that might constitute a reasonable substitute for the video description requirements. The Commission will evaluate economic burden with regard to the individual outlet.
(4) The petitioner must file an original and two (2) copies of a petition requesting an exemption based on the economically burdensome standard, and all subsequent pleadings, in accordance with § 0.401(a) of this chapter.
(5) The Commission will place the petition on public notice.
(6) Any interested person may file comments or oppositions to the petition within 30 days of the public notice of the petition. Within 20 days of the close of the comment period, the petitioner may reply to any comments or oppositions filed.
(7) Persons that file comments or oppositions to the petition must serve the petitioner with copies of those comments or oppositions and must include a certification that the petitioner was served with a copy. Parties filing replies to comments or oppositions must serve the commenting or opposing party with copies of such replies and shall include a certification that the party was served with a copy.
(8) Upon a finding of good cause, the Commission may lengthen or shorten any comment period and waive or establish other procedural requirements.
(9) Persons filing petitions and responsive pleadings must include a detailed, full showing, supported by affidavit, of any facts or considerations relied on.
(10) The Commission may deny or approve, in whole or in part, a petition for an economic burden exemption from the video description requirements.
(11) During the pendency of an economic burden determination, the Commission will consider the video programming subject to the request for exemption as exempt from the video description requirements.
(e)
(i) The name and address of the complainant;
(ii) The name and address of the broadcast station against whom the complaint is alleged and its call letters and network affiliation, or the name and address of the MVPD against whom the complaint is alleged and the name of the network that provides the programming that is the subject of the complaint;
(iii) A statement of facts sufficient to show that the video programming distributor has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;
(iv) The specific relief or satisfaction sought by the complainant;
(v) The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, or some other method that would best accommodate the complainant's disability); and
(vi) A certification that the complainant attempted in good faith to resolve the dispute with the broadcast station or MVPD against whom the complaint is alleged.
(2) The Commission will promptly forward complaints satisfying the above requirements to the video programming distributor involved. The video programming distributor must respond to the complaint within a specified time, generally within 30 days. The Commission may authorize Commission staff either to shorten or lengthen the time required for responding to complaints in particular cases. The answer to a complaint must include a certification that the video programming
(3) The Commission will review all relevant information provided by the complainant and the video programming distributor and will request additional information from either or both parties when needed for a full resolution of the complaint.
(i) The Commission may rely on certifications from programming suppliers, including programming producers, programming owners, networks, syndicators and other distributors, to demonstrate compliance. The Commission will not hold the video programming distributor responsible for situations where a program source falsely certifies that programming that it delivered to the video programming distributor meets our video description requirements if the video programming distributor is unaware that the certification is false. Appropriate action may be taken with respect to deliberate falsifications.
(ii) If the Commission finds that a video programming distributor has violated the video description requirements of this section, it may impose penalties, including a requirement that the video programming distributor deliver video programming containing video description in excess of its requirements.
(f)
Federal Communications Commission.
Review of regulations; comments requested.
This document invites members of the public to comment on the Federal Communication Commission's (FCC's or Commission's) rules to be reviewed pursuant to section 610 of the Regulatory Flexibility Act of 1980, as amended (RFA). The purpose of the review is to determine whether Commission rules whose ten-year anniversary dates are in the year 2009, as contained in the Appendix, should be continued without change, amended, or rescinded in order to minimize any significant impact the rules may have on a substantial number of small entities. Upon receipt of comments from the public, the Commission will evaluate those comments and consider whether action should be taken to rescind or amend the relevant rule(s).
Comments may be filed on or before May 17, 2011.
Sharon K. Stewart, Chief of Staff, Office of Communications Business Opportunities (OCBO), Federal Communications Commission, (202) 418-0990. People with disabilities may contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART,
Federal Communications Commission, Office of the Secretary, 445 12th Street, SW., Washington, DC 20554.
Each year the Commission will publish a list of ten-year old rules for review and comment by interested parties pursuant to the requirements of section 610 of the RFA.
Released:
1. Pursuant to the Regulatory Flexibility Act (RFA),
2. This document lists the FCC regulations to be reviewed during the next twelve months. In succeeding years, as here, the Commission will publish a list for the review of regulations promulgated ten years preceding the year of review.
3. In reviewing each rule in a manner consistent with the requirements of section 610 the FCC will consider the following factors:
(a) The continued need for the rule;
(b) The nature of complaints or comments received concerning the rule from the public;
(c) The complexity of the rule;
(d) The extent to which the rule overlaps, duplicates, or conflicts with other Federal rules and, to the extent feasible, with State and local governmental rules; and
(e) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.
4. Appropriate information has been provided for each rule, including a brief description of the rule and the need for, and legal basis of, the rule. The public is invited to comment on the rules chosen for review by the FCC according to the requirements of section 610 of the RFA. All relevant and timely comments will be considered by the FCC before final action is taken in this proceeding.
Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Comments filed through the ECFS may be sent as an electronic file via the Internet to
Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. Again, please include the docket (proceeding) and “DA” number.
The filing hours at this location are 8 a.m. to 7 p.m.
All hand deliveries must be held together with rubber bands or fasteners.
• Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
• All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
Comments in this proceeding will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300 or 800-378-3160, facsimile 202-488-5563, or via e-mail at
For information on the requirements of the RFA, the public may contact Carolyn Fleming Williams, Senior Deputy Director, Office of Communications Business Opportunities, 202-418-0990 or visit
List of rules for review pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 610, for the ten-year period beginning in the year 1999 and ending in the year 2009. All listed rules are in Title 47 of the Code of Federal Regulations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearing.
On December 10, 2010, we, NMFS, published a proposed rule to list the Arctic (
A hearing will be held on April 5, 2011, from 4 p.m. to 7 p.m. in Nome, AK. Written comments must be received on or before March 25, 2011, or during the hearing in Nome.
The April 5, 2011, hearing will be held at the Mini-Convention Center, 409 River Street, Nome, AK.
Send written comments to Kaja Brix, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-XZ59, by any one of the following methods:
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All comments received are a part of the public record. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
We will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
The proposed rule, status review report, and other materials relating to this proposal can be found on the Alaska Region Web site at:
Tamara Olson, NMFS Alaska Region, (907) 271-5006; Kaja Brix, NMFS Alaska Region, (907) 586-7235; or Marta Nammack, Office of Protected Resources, Silver Spring, MD (301) 713-1401.
On December 10, 2010 (75 FR 77476), we published a proposed rule to list the Arctic, Okhotsk, Baltic, and Ladoga subspecies of the ringed seal as threatened under the ESA. Based on the status of these subspecies, we also proposed protective regulations pursuant to section 4(d) of the ESA for these subspecies to include all of the prohibitions in section 9(a)(1) of the ESA. The original due date for comments on these proposed actions (February 8, 2011) was extended to March 25, 2011 (76 FR 6754; February 8, 2011).
Joint Commerce-Interior ESA implementing regulations state that the Secretary shall promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed regulation to list a species or to designate critical habitat (see 50 CFR 424.16(c)(3)). In response to requests from various parties to hold public hearings in a number of locations in Alaska, we published a notice in the
People wishing to make an oral statement for the record at a public hearing are encouraged to provide a written copy of their statement and present it to us at the hearing. In the event that attendance at the public hearings is large, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us.
16 U.S.C. 1533
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearing.
On December 10, 2010, we, NMFS, published a proposed rule to list the Beringia and Okhotsk Distinct Population Segments (DPSs) of the bearded seal (
A hearing will be held on April 5, 2011, from 4 p.m. to 7 p.m. in Nome, AK. Written comments must be received on or before March 25, 2011, or during the hearing in Nome.
The April 5, 2011, hearing will be held at the Mini-Convention Center, 409 River Street, Nome, AK.
Send written comments to Kaja Brix, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-XZ59, by any one of the following methods:
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All comments received are a part of the public record. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
We will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
The proposed rule, status review report, and other materials relating to this proposal can be found on the Alaska Region Web site at:
Tamara Olson, NMFS Alaska Region, (907) 271-5006; Kaja Brix, NMFS Alaska Region, (907) 586-7235; or Marta Nammack, Office of Protected Resources, Silver Spring, MD (301) 713-1401.
On December 10, 2010 (75 FR 77496), we published a proposed rule to list the Beringia and Okhotsk Distinct Population Segments (DPSs) of the bearded seal as threatened under the ESA. Based on the status of these DPSs, we also proposed protective regulations pursuant to section 4(d) of the ESA for these DPSs to include all of the prohibitions in section 9(a)(1) of the ESA. The original due date for comments on these proposed actions (February 8, 2011) was extended to March 25, 2011 (76 FR 6755; February 8, 2011).
Joint Commerce—Interior ESA implementing regulations state that the Secretary shall promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed regulation to list a species or to designate critical habitat (see 50 CFR 424.16(c)(3)). In response to requests from various parties to hold public hearings in a number of locations in Alaska, we published a notice in the
People wishing to make an oral statement for the record at a public hearing are encouraged to provide a written copy of their statement and present it to us at the hearing. In the event that attendance at the public hearings is large, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us.
16 U.S.C. 1533
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments; notice of public hearings.
This proposed rule would modify the permitting and retention requirements for Atlantic highly migratory species (HMS) to address the incidental catch of North Atlantic swordfish in squid trawl fisheries, and the incidental catch of species in the smoothhound shark complex (which includes smooth dogfish and Florida smoothhound (genus
Written comments must be received on or before April 17, 2011.
The public hearing dates are:
1. March 21, 2011, 1 p.m. to 3 p.m., Gloucester, MA
2. March 22, 2011, 4:30 p.m. to 6:30 p.m., Barnegat, NJ
3. March 28, 2011, 5 p.m. to 7 p.m., Manteo, NC
4. April 6, 2011, 8:30 a.m. to 10 a.m., Silver Spring, MD
5. April 13, 2011, 11 a.m. to 12 p.m., Annapolis, MD
The public hearings will be held at the NMFS Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA, 01930; Ocean County Library (Barnegat Branch), 112 Burr Street, Barnegat, NJ, 08005; Manteo Town Hall, 407 Budleigh St., Manteo, NC, 27954; HMS Advisory Panel (AP) Meeting, Crowne Plaza Hotel, 8777 Georgia Ave., Silver Spring, MD, 20910; Mid-Atlantic Fishery Management Council (MAFMC) Meeting, Historic Inn of Annapolis, 58 State Circle, Annapolis, MD, 21401.
You may submit comments, identified by “0648-BA45,” by any one of the following methods:
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NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Supporting documents, including the draft Environmental Assessment (EA), Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA) for this action are available online at the HMS Management Division Web site:
Richard A. Pearson at 727-824-5399, Steve Durkee at 202-670-6637, or Delisse Ortiz at 301-713-2347.
North Atlantic swordfish and smoothhound shark species are managed under the authority of the Magnuson-Stevens Act, and swordfish are also managed under the authority of the Atlantic Tunas Convention Act (ATCA), which authorizes the Secretary of Commerce (Secretary) to promulgate regulations as may be necessary and appropriate to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA). On May 28, 1999, NMFS published in the
NMFS is issuing this proposed rule to address the permitting requirements for, and retention of, incidentally-caught HMS in Atlantic trawl fisheries. The proposed actions are necessary to achieve domestic management objectives under the Magnuson-Stevens Act and ATCA, and to implement the Consolidated HMS FMP and its amendments. This includes objectives in the FMP to monitor and control all components of fishing mortality, both directed and incidental, so as to ensure the long-term sustainability of HMS stocks, and to provide the data necessary for assessing HMS fish stocks and managing HMS, including addressing inadequacies in current data collection and the ongoing collection of economic and bycatch data in Atlantic HMS fisheries. This proposed rule addresses two separate, but related, issues regarding the retention of incidentally-caught HMS in trawl fisheries to achieve these objectives: (1) The retention of incidentally-caught swordfish in the
Limited access permits (LAPs) in the North Atlantic commercial swordfish fishery were first implemented during 1999-2000. These LAPs were issued based, in part, upon a vessel's swordfish landings history. At the time, some squid trawl vessels qualified for a swordfish LAP, but many did not for a variety of reasons (including a lack of documented swordfish landings or income from swordfish). Under current regulations, vessels intending to legally land North Atlantic swordfish with gear other than handgear, including squid trawl vessels, must be issued a swordfish LAP, a shark LAP, and an Atlantic Tunas Longline LAP (the “HMS permit triple-pack”). The requirement to possess three LAPs was primarily intended for pelagic longline (PLL) vessels, because of the high likelihood of catching swordfish, sharks, and tunas when fishing with PLL gear. Because some squid trawl vessels did not apply for, or qualify for, the “HMS permit triple-pack,” these vessels have had to discard any swordfish captured incidentally by their squid trawls. Due to physical trauma, most of the swordfish caught in trawl nets are brought onboard dead or die soon afterwards.
While the use of trawl gear is not authorized for any HMS fisheries, the current regulations provide for the incidental retention of up to 15 swordfish per trip in the squid trawl fishery, provided that the vessel has been issued the “HMS permit triple-pack” that is required to retain swordfish. Under no circumstances, however, may a squid trawl vessel retain sharks (aside from smoothhound sharks) or tunas because trawl gear is not authorized for these species, and there is no exemption for these species for squid trawls. Under the HMS regulations, a vessel is considered to be in the squid trawl fishery when it has no commercial fishing gear other than trawls on board and when squid constitutes not less than 75 percent by weight of the total retained catch. An analysis of the Northeast Vessel Trip Report (VTR) data indicates that swordfish are frequently discarded by squid trawl vessels. Because swordfish are incidentally-caught during normal squid trawl fishing operations, and the regulations allow for retention only if the vessel has been issued the “HMS permit triple-pack,” the current permit requirements may be inadvertently contributing to regulatory dead discards of swordfish. When PLL gear is deployed, swordfish, sharks, and tunas are all likely to be caught. However, trawl gear is different from PLL gear, and incidentally-caught swordfish in squid trawl gear constitute a very small component of the overall catch. Therefore, the rationale which prompted NMFS to require the issuance of swordfish, shark, and Atlantic Tunas Longline LAPs in order to land swordfish is not as likely to be applicable to squid trawl vessels as it is for PLL vessels.
Squid trawl vessel owners that were not initially issued the three LAPs required to retain swordfish can currently obtain the permits by purchasing them and transferring the permits to their vessels. However, this is not a practical solution because swordfish are a very small component of the overall catch in the squid trawl fishery and the “HMS permit triple-pack” is often expensive, making it a poor investment for squid trawl vessels, and one that may take several years to recoup. The HMS permit structure is also problematic for squid trawl vessels because swordfish dead discards could be a source of revenue for U.S. fishermen. Swordfish caught incidentally by trawl gear are usually brought on board dead, or die soon afterwards.
NMFS has received an increasing number of comments, primarily from squid trawl vessel owners, requesting reconsideration of the three-permit requirement for squid trawl vessels. The current HMS permit structure (
On June 1, 2010, NMFS published a final rule (75 FR 30484, June 1, 2010) implementing Amendment 3 to the Consolidated HMS FMP (Amendment 3). In Amendment 3 (75 FR 30484, June 1, 2010), NMFS determined that smooth dogfish is an oceanic shark and should be managed under the Secretary's authority because of the wide distribution of smooth dogfish and because their range extends into the jurisdictions of more than one of the five regional Atlantic fishery management councils. NMFS determined that, based on existing data, the smooth dogfish fishery was substantial with average annual landings of 431 mt dressed weight (dw), which was among the highest for any Atlantic species of shark managed by NMFS. It was decided that sound science-based conservation and management was necessary to provide for long-term sustainable yield from the stock.
During the development of Amendment 3, emerging molecular and morphological research determined that Florida smoothhounds (
Most directed smooth dogfish catch occurs with gillnets and bottom longlines, and incidental catches occur with trawl gear. As such, NMFS implemented a new requirement for a Federal smoothhound permit that is to be effective at the start of the 2012 smoothhound shark fishing season (75 FR 30524, June 1, 2010). The purpose of this action was to collect better fishery data and improve information regarding the life history of the species, among others. Consistent with the stated intent of Amendment 3 to minimize changes to the fishery, trawl gear was not authorized as an HMS gear, but NMFS indicated that vessels with trawl gear could harvest smoothhound shark species at incidental levels, similar to swordfish. Therefore, NMFS is considering in this proposed rule an appropriate retention limit that would allow fishermen to harvest incidentally-caught smoothhound shark species with trawl gear provided that sufficient quantities of target catch are retained. The proposed action would allow persons on board a vessel in a trawl fishery that has been issued a commercial open-access smoothhound permit to retain, possess, land, or sell incidentally-caught smoothhound sharks, but only up to an amount that does not exceed 25 percent, by weight, of the total fish on board or offloaded from the vessel. A vessel is considered to be in a trawl fishery when it has no commercial fishing gear other than trawls on board and when smoothhound sharks constitute no more than 25 percent by weight of the total fish on board or offloaded from the vessel.
In summary, NMFS is proposing measures that would modify the permitting requirements and allowance for incidentally-caught HMS in trawl gears. These actions would reduce regulatory dead discards, consistent with fishery management objectives, by converting discards into landings; improve fishery data collection; provide additional opportunities for the U.S. swordfish quota to be caught; and accommodate the use of traditional fishing gears (
Under the current swordfish retention limit regulations for squid trawl vessels at § 635.24, a squid trawl vessel must be issued a swordfish LAP (other than handgear), a shark LAP, and an Atlantic Tunas Longline LAP to retain, possess, land or sell the allowed incidental retention limit of 15 swordfish per trip. A vessel is considered to be in the squid trawl fishery when it has no commercial fishing gear other than trawl gear on board and when squid constitutes not less than 75 percent by weight of the total fish on board or offloaded from the vessel. In addition, vessel owners issued the “HMS permit triple-pack” are required to sell their swordfish only to federally permitted swordfish dealers, and must report all swordfish landed in Federal logbooks.
As indicated in the Background section of this preamble, these current requirements may be contributing to regulatory dead discards of swordfish by squid trawl vessels which did not apply for, qualify for, or obtain, the three requisite permits needed to retain swordfish. The intent of this proposed action is to reduce wasteful discards in squid trawl fisheries by converting regulatory dead discards of swordfish into landings, and to fully account for swordfish removed from the stock to provide better data for stock assessment purposes and quota monitoring. Relieving squid trawl vessels of the need to be issued three different HMS permits (that were primarily intended for PLL vessels) would also be more efficient, and could improve reporting and compliance with HMS regulations in all squid trawl fisheries.
NMFS is proposing the following alternatives to reduce regulatory dead discards of swordfish incidentally-caught in squid trawl gear: Alternative A1, no action; Alternative A2, the preferred alternative, which would establish a new permit (
Overall squid trawl fishing effort is not expected to change under any of the four alternatives regardless of whether vessels are allowed to retain, rather than discard, swordfish captured incidentally while fishing for squid. These vessels are primarily designed to fish for, and land, small pelagic species such as squid, mackerel, and butterfish. Swordfish catches are incidental to catches of these target species. For 2011, the U.S. allowable biological catch for
Northeast Fisheries Science Center (NEFSC) Observer Data from 1997-2006 indicates that both the directed
The incidental catch of swordfish is much higher in the
In 2010, there were 365 vessels issued
The no action alternative would have minor adverse short-term, long-term, and cumulative social and economic impacts because of the continued occurrence of regulatory dead discards of swordfish by squid trawl vessels under this alternative. Although the estimated number of discards is relatively low (less than 450 fish annually), it represents unrealized income and economic waste because the swordfish must be thrown overboard and are usually dead. Alternatives A2-A4 would all provide minor beneficial direct short-term, long-term, and cumulative social and economic impacts because dead swordfish discards would be converted into landings and income for fishermen, and a larger portion of the ICCAT-recommended U.S. swordfish quota would be harvested. Because Alternative A3 would not implement a permit requirement for
Alternative A2 is preferred at this time because it would provide socioeconomic benefits for the
Smoothhound sharks were brought under Federal management in 2010 through implementation of Amendment 3 to the Consolidated HMS FMP. As discussed in the Background section of this preamble, NMFS included a new requirement for a federal smoothhound permit that is to be effective at the start of the 2012 fishing season. Consistent with the intent of Amendment 3 to minimize changes in the fishery, NMFS stated that vessels fishing with trawl gear would be allowed to land smoothhound shark species at incidental levels, similar to swordfish.
NMFS proposes the following alternatives to address the retention of smoothhound sharks caught incidentally in trawl gear: Alternative B1, no action; Alternative B2, the preferred alternative, which would allow for the retention of smoothhound sharks caught incidentally in trawl gear, in an amount not to exceed 25 percent of the total catch, by weight; and Alternative B3, which would allow for the retention of smoothhound sharks caught incidentally in trawl gear, in an amount not to exceed 50 percent of the total catch, by weight.
Alternative B1 would not implement management measures in the 2012 fishing year to allow for the retention of smoothhound sharks caught incidentally in trawl gear. Under Amendment 3 to the HMS FMP, trawl gear is not an authorized gear in the smoothhound shark fishery and, in the absence of additional regulations, it would be illegal, beginning with the 2012 fishing season, to retain smoothhound sharks caught with trawl gear.
After Federal smoothhound shark management measures are implemented in 2012, the no action Alternative B1 would require trawl fishermen to discard any incidentally-caught smoothhound sharks. This alternative could have minor beneficial ecological impacts. Unlike swordfish captured in trawl gear, which are thought to have a very low survivorship, smoothhound sharks may be better adapted to survive trawl capture and release. Although difficult to quantify, it is possible that a portion of the discards under no action Alternative B1 would be live discards and, therefore, fishing mortality on the Atlantic smoothhound shark stock could be reduced.
Alternatives B2 and B3 would be expected to have positive ecological impacts when compared to the status quo, since it is currently legal for trawl fishermen to retain an unlimited amount of smoothhound sharks. However, ecological impacts resulting from either Alternative B2 or B3 must also be assessed compared to the no action alternative, B1. Under the no action alternative, trawl fishermen would not be authorized to retain smoothhound sharks beginning in 2012. Therefore, both Alternatives B2 and B3 would result in an increase in the retention of the species and the potential for higher fishing mortality in comparison to the no action alternative. For this reason, both Alternatives B2 and B3 could have minor, direct short-term and long-term negative ecological impacts relative to the no action alternative, because they would allow for some retention of smoothhound sharks. The two alternatives establish different incidental catch thresholds, but both would allow for retention of the species. The potential for higher fishing mortality under Alternative B2 and B3, as compared to the no action alternative (no retention of smoothhound sharks in trawl gear beginning in 2012), could result in minor negative impacts to the stock. However, in comparison to the status quo (currently unlimited retention of smoothhound sharks in trawl gear), Alternatives B2 and B3 could have minor positive impacts to the stock because they limit retention to no more than 25 or 50 percent of the total retained catch on board, respectively. Regardless, it is important to note that the smoothhound shark complex does not show signs of being unhealthy, and catch data has remained consistent over the past 10 years.
In summary, none of the alternatives are expected to result in any change in trawl fishing effort because smoothhound sharks are rarely, if ever, targeted with trawl gear. Smoothhound sharks are usually caught incidentally while trawl fishing for other species, such as summer flounder, scup, croaker, silver hake, and squid. Therefore, any ecological impacts associated with the alternatives, either positive or negative, are expected to be either minor or non-existent.
Social and economic impacts, either positive or negative, are similarly expected to be minor under all of the alternatives. Under Alternative B1, trawl fishermen could collectively lose $56,729 per year between 266 vessels (or approximately $213 per vessel), beginning in 2012. Under Alternatives B2 and B3, however, they would
NMFS requests comments on all aspects of this proposed rule. NMFS also requests specific comments regarding the practicality and potential impacts associated with establishing a smoothhound shark retention limit for trawl vessels that is based upon the percent, by weight, of the total catch on board or offloaded from the vessel.
Comments on this proposed rule may be submitted online via
Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.
NMFS prepared an EA for this proposed rule that discusses the impact on the environment as a result of this rule. In this proposed action, NMFS considers the establishment of a new Incidental HMS Squid Trawl permit to reduce regulatory dead discards of North Atlantic swordfish in squid trawl fisheries with minimal ecological impacts. The proposed action also considers establishing a retention limit for smoothhound shark species in all Atlantic trawl fisheries to account for the incidental catch of these species. These measures are meant to reduce regulatory dead discards of HMS in trawl fisheries, consistent with fishery management objectives, by converting discards into landings, improving fishery data collection, providing additional opportunities for the U.S. swordfish quota to be caught, and accommodating traditional fishing methods (
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the
In compliance with section 603(b)(1) of the RFA, the purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act, and the 2006 Consolidated HMS FMP and its amendments, to consider modifications to the permitting requirements for squid trawl vessels to retain incidentally-caught swordfish that would otherwise be discarded dead, and to establish smoothhound shark incidental retention limits for all Atlantic trawl vessels.
In compliance with section 603(b)(2) of the RFA, the objectives of this proposed rulemaking are to: (1) Establish a new Incidental HMS Squid Trawl permit to reduce regulatory dead discards of North Atlantic swordfish in squid trawl fisheries; and, (2) establish a retention limit for smoothhound shark species in all Atlantic trawl fisheries to account for the incidental catch of these species.
Section 603(b)(3) requires Federal agencies to provide an estimate of the number of small entities to which the rule would apply. NMFS has determined that all squid trawl vessels that are issued an
The proposed rule would apply to the 76 current (as of September 2010)
Under section 603 (b)(4) of the RFA, agencies are required to describe any new reporting, record-keeping and other compliance requirements. The proposed Federal permit requirement for an
Under section 603(b)(5) of the RFA, agencies are required to identify, to the extent practicable, all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule. Fishermen, dealers, and managers in these fisheries must comply with a number of domestic laws, as well as regulations implementing other FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. NMFS does not believe that the proposed regulations would duplicate, overlap, or conflict with any relevant regulations, Federal or otherwise.
Under section 603(c) of the RFA, agencies are required to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. The potential impacts of this proposed action are discussed below and in the EA for the proposed action. Additionally, the RFA lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives (5 U.S.C. 603(c) (1)-(4)). These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and, (4) exemptions from coverage of the rule for small entities
In order to meet the objectives of this proposed rule in a manner consistent with all other legal obligations, NMFS cannot exempt small entities or change the reporting requirements for only small entities. Thus, NMFS did not analyze any alternatives for either issue that fall under the first and fourth categories described above. In addition, NMFS intends to clarify and consolidate all reporting and compliance requirements associated with this proposed rule, to the extent practicable (category two above). All federally-permitted squid trawl vessels must currently report all of their landings via a NMFS Northeast Region Fishing Vessel Trip Report (VTR). NMFS intends to continue to utilize this reporting mechanism for all vessels that would be issued an Incidental HMS Squid Trawl permit to report their swordfish landings, although vessels could be selected for additional reporting under this rule if such reporting is determined to be necessary and appropriate. Similarly, the application process for the proposed Incidental HMS Squid Trawl permit would be the same, or similar, to the process used to apply for an
As described below, for this proposed rule, NMFS considered and analyzed four alternatives to address the retention of incidentally-caught swordfish in squid trawl fisheries (Issue A), and three alternatives to address the retention of incidentally-caught smoothhound sharks in trawl fisheries (Issue B).
The first alternative for Issue A is the no action alternative. This alternative would maintain existing HMS permit requirements and incidental swordfish retention limits in squid trawl fisheries. The second alternative, the preferred alternative, would implement a new permit (referred to as the Incidental HMS Squid Trawl permit) for
For Issue A, the no action alternative (A1) would not result in any additional economic impacts to small entities in the short-term. However, this alternative contributes to a loss of potential income by squid trawl vessels which may occasionally catch a swordfish while it is foraging on squid or in the same physical environment, during normal squid trawl fishing activities. Only five squid trawl vessels out of 180 active
The preferred alternative, Alternative A2, would implement a new permit (referred to as the Incidental HMS Squid Trawl permit) for
Alternative A3 is estimated to have the same minor positive economic impacts on small entities as preferred Alternative A2. However, there would be no costs to vessel owners associated with obtaining a new HMS permit (approximately $20/year). Rather, Alternative A3 would exempt vessels issued an
Alternative A4 would implement the same requirements for
For Issue B, under the no action alternative (B1), beginning in 2012, the retention of smoothhound sharks would be prohibited by trawl vessels without the additional regulatory action that is proposed in this rulemaking. Therefore, Alternative B1 would have moderate direct short-term and long-term negative social and economic impacts starting in 2012. Based on VTR data from 2000-2009, an average of 145,088 lbs dw of smoothhound sharks were caught in trawl gear, retained, and likely sold per year. Using an average ex-vessel price of $0.29 for smoothhound shark meat, $2.02 for smoothhound shark fins, and assuming a fin-to-carcass ratio of five percent, total revenues from smoothhound sharks caught in trawl gear averages $56,729 per year. Thus, in aggregate, under Alternative B1, in 2012 trawl fishermen could collectively lose $56,729 per year across up to 266 vessels. Individually, each vessel could realize approximately $213.26 annually in lost revenue under the no action alternative. This alternative is not preferred because prohibiting the retention of incidentally-caught smoothhound sharks by trawl gear would not be consistent with NMFS's intent in Amendment 3 to minimize changes to the smoothhound fishery by allowing for incidental trawl landings.
Alternative B2, the preferred alternative, would allow for the retention of smoothhound sharks caught incidentally in trawl gear, in an amount not to exceed 25 percent of the total catch, by weight. When compared to the no action alternative, starting in 2012 Alternative B2 would have moderate direct short-term and long-term positive social and economic impacts. Currently, some trawl fishermen supplement fishing revenue with smoothhound shark products. Under the no action alternative in 2012, they would no longer be able to do so. Under Alternative B2, however, they would continue to be allowed to retain and sell incidentally caught smoothhound sharks. Calculating the exact level of revenue that would continue to be earned through smoothhound shark sales by trawl fishermen is difficult due to incomplete reporting and data. However, based upon the average annual total smoothhound shark trawl revenue estimate of $56,729, and the fact that Alternative B2 would continue to allow approximately 89 percent of historical smoothhound trawl trips, fishermen stand to experience moderate positive social and economic impacts compared to Alternative B1 starting in 2012. This alternative is preferred because it maintains 89 percent of historical smoothhound shark trips, but implements a reasonable upper threshold on landings to discourage a directed trawl fishery for smoothhound
Alternative B3 would allow for the retention of smoothhound sharks caught incidentally in trawl gear, in an amount not to exceed 50 percent of the total catch, by weight. When compared to the no action alternative, Alternative B3 would have moderate direct short-term and long-term positive social and economic impacts beginning in 2012. Currently, some trawl fishermen supplement fishing revenue with smoothhound shark products. Under the no action alternative, they would no longer be able to do so starting in 2012. Under Alternative B3, however, they would continue to be allowed to retain and sell incidentally-caught smoothhound sharks. Calculating the exact level of revenue that would continue to be earned through smoothhound shark sales by trawl fishermen is difficult due to incomplete reporting and data. However, based upon the average annual total smoothhound shark trawl revenue estimate of $56,729, and the fact that Alternative B3 would continue to allow approximately 97 percent of the historical smoothhound trawl trips, fishermen would experience moderate positive social and economic impacts compared to Alternative B1 starting in 2012. This alternative is not preferred because allowing a trawl fishing trip to be up to 50 percent smoothhound sharks would not effectively ensure that a directed trawl fishery for smoothhound sharks does not develop. This alternative would not be consistent with NMFS's intent in Amendment 3 to minimize changes to the smoothhound fishery by allowing only for incidental trawl landings.
In summary, preferred Alternative A2 would have minor direct short-term positive economic impacts. It is estimated to allow 13 active
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:
1. The authority citation for part 635 continues to read as follows:
16 U.S.C. 971
2. In § 635.4, paragraphs (a)(5), (a)(10), (f)(1), and (f)(2), the heading of paragraph (h)(1), and paragraphs (m)(1) and (m)(2) are revised, and paragraphs (h)(1)(iv) and (n) are added to read as follows:
(a) * * *
(5)
(10)
(f) * * *
(1) Except as specified in paragraph (n) of this section, the owner of each vessel used to fish for or take Atlantic swordfish or on which Atlantic swordfish are retained, possessed with an intention to sell, or sold must obtain, in addition to any other required permits, only one of three types of commercial limited access swordfish permits: Swordfish directed limited access permit, swordfish incidental limited access permit, or swordfish handgear limited access permit. It is a rebuttable presumption that the owner or operator of a vessel on which swordfish are possessed in excess of the recreational retention limits intends to sell the swordfish.
(2) The only valid commercial Federal vessel permits for swordfish are those that have been issued under the limited access program consistent with the provisions under paragraphs (l) and (m) of this section, or those issued under paragraph (n) of this section.
(h) * * *
(1)
(iv) An applicant for an incidental HMS squid trawl permit must submit, in addition to all other information specified in § 635.4(h)(1), a copy of a valid
(m) * * *
(1)
(2)
(n)
(2) An Incidental HMS squid trawl permit is valid only when the vessel has on board a valid
3. In § 635.5, paragraph (a)(1) is revised to read as follows:
(a) * * *
(1)
4. In § 635.21, paragraphs (e)(3)(i), (e)(4)(i), and (e)(4)(iv) are revised to read as follows:
(e) * * *
(3) * * *
(i) No person may possess a shark in the EEZ taken from its management unit without a permit issued under § 635.4. No person issued a Federal Atlantic commercial shark permit under § 635.4 may possess a shark taken by any gear other than rod and reel, handline, bandit gear, longline, or gillnet, except that smoothhound sharks taken incidentally while fishing with trawl gear may be retained by vessels issued a Federal commercial smoothhound permit, subject to the restrictions specified in § 635.24(a)(7). No person issued an HMS Angling permit or an HMS Charter/Headboat permit under § 635.4 may possess a shark if the shark was taken from its management unit by any gear other than rod and reel or handline, except that persons on a vessel issued both an HMS Charter/Headboat permit and a Federal Atlantic commercial shark permit may possess sharks taken with rod and reel, handline, bandit gear, longline, or gillnet if the vessel is not engaged in a for-hire fishing trip.
(4) * * *
(i) No person may possess north Atlantic swordfish taken from its management unit by any gear other than handgear or longline, except that such swordfish taken incidentally while fishing with a squid trawl may be retained by a vessel issued a valid Incidental HMS squid trawl permit, subject to restrictions specified in § 635.24(b)(2). No person may possess south Atlantic swordfish taken from its management unit by any gear other than longline.
(iv) Except for persons aboard a vessel that has been issued a limited access North Atlantic swordfish permit or Incidental HMS squid trawl permit under § 635.4, no person may fish for North Atlantic swordfish with, or possess a North Atlantic swordfish taken by, any gear other than handline or rod and reel.
5. In § 635.24, paragraphs (a)(7), (b)(1), and (b)(2) are revised to read as follows:
(a) * * *
(7) Only persons who own or operate a vessel that has been issued a Federal commercial smoothhound permit may retain, possess, and land smoothhound sharks if the smoothhound fishery is open per §§ 635.27 and 635.28. Persons aboard a vessel in a trawl fishery that has been issued a commercial smoothhound permit, and are in compliance with all other applicable regulations, may retain, possess, land, or sell incidentally-caught smoothhound sharks, but only up to an amount that does not exceed 25 percent, by weight, of the total catch on board or offloaded from the vessel. A vessel is considered to be in a trawl fishery when it has no commercial fishing gear other than trawls on board and when smoothhound sharks constitute no more than 25 percent by weight of the total fish on board or offloaded from the vessel.
(b) * * *
(1) Persons aboard a vessel that has been issued an incidental LAP for swordfish may retain, possess, land, or sell no more than 30 swordfish per trip in or from the Atlantic Ocean north of 5° N. lat.
(2) Persons aboard a vessel in the squid trawl fishery that has been issued an Incidental HMS squid trawl permit may retain, possess, land, or sell no more than 15 swordfish per trip in or from the Atlantic Ocean north of 5° N. lat. A vessel is considered to be in the squid trawl fishery when it has no commercial fishing gear other than trawls on board and when squid constitute not less than 75 percent by weight of the total fish on board or offloaded from the vessel.
6. In § 635.27, paragraph (c)(1)(i)(B) is revised to read as follows:
(c) * * *
(1) * * *
(i) * * *
(B) A swordfish from the North Atlantic swordfish stock landed by a vessel for which an incidental catch permit for swordfish or an HMS Angling or Charter/Headboat or Incidental HMS squid trawl permit has been issued, or caught after the effective date of a closure of the directed fishery from a vessel for which a directed fishery permit or a handgear permit for swordfish has been issued, is counted against the incidental catch quota.
7. In § 635.28, the first sentence of paragraph (c)(1)(i)(A) is revised to read as follows:
(c) * * *
(1) * * *
(i) * * *
(A) No more than 15 swordfish per trip may be possessed in or from the Atlantic Ocean north of 5 N. lat. or landed in an Atlantic coastal state on a vessel using or having on board a pelagic longline, or issued an Incidental HMS squid trawl permit. * * *
8. In § 635.71, paragraph (d)(18) is added, and paragraph (e)(8) is revised to read as follows:
(d) * * *
(18) Retain or possess on board a vessel in the trawl fishery smoothhound sharks in an amount that exceeds 25 percent, by weight, of the total fish on board or offloaded from the vessel, as specified at § 635.24(a)(7).
(e) * * *
(8) Fish for North Atlantic swordfish from, possess North Atlantic swordfish on board, or land North Atlantic swordfish from a vessel using or having on board gear other than pelagic longline or handgear, except as specified at § 635.21(e)(4)(i).
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) 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) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) 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 technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) 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) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) 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 technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) 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) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) 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 technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Office of the Under Secretary, Research, Education, and Economics.
Notice of request for nominations to the Advisory Committee on Biotechnology and 21st Century Agriculture.
The Secretary of Agriculture requests nominations for qualified persons to serve as members of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21).
Written nominations must be received by fax or postmarked on or before April 18, 2011.
All nomination materials should be sent to Michael Schechtman, Designated Federal Official, Office of the Secretary, USDA, 202B Jamie L. Whitten Federal Building, 14th and Independence Avenue, SW., Washington, DC 20250. Forms may also be submitted by fax to (202) 690-4265, if they are followed by written copies.
Questions should be addressed to Michael Schechtman, Designated Federal Official, telephone (202) 720-3817; fax (202) 690-4265; e-mail
It is envisioned that the immediate upcoming work of the AC21 will concentrate on providing practical recommendations to the Secretary of Agriculture on ways to strengthen coexistence among different agricultural crop production methods. One specific focus will be on mechanisms that might be employed to help the market balance risks and rewards in different production sectors. Accordingly, Committee membership will concentrate on areas most relevant to those deliberations.
Nominations for AC21 membership must be in writing and provide the appropriate background documents required by USDA policy, including background disclosure form AD-755. Neither the form nor the information it contains may be released to the public, except as authorized by law.
No member may serve on the AC21 for more than six consecutive years. Nominees will initially serve for terms of 1 or 2 years for purposes of continuity. Previous AC21 members who wish again to be considered for membership must resubmit the full package of materials described under
Members of the AC21 and its subcommittees shall serve without pay, but with reimbursement of travel expenses and per diem for attendance at AC21 and subcommittee functions for those AC21 members who require assistance in order to attend the meetings. While away from home or their regular place of business, those members will be eligible for travel expenses paid by REE, USDA, including per diem in lieu of subsistence, at the same rate as a person employed intermittently in the government service is allowed under Section 5703 of Title 5, United States Code.
1. A brief summary of no more than two (2) pages explaining the nominee's suitability to serve on the AC21.
2. A resume or curriculum vitae.
3. A completed copy of form AD-755.
Nominations should be sent to Michael Schechtman at the address listed above, and be post marked no later than April 18, 2011.
To ensure that recommendations of the task force take into account the needs of underserved and diverse communities served by USDA, membership will include, to the extent practicable, individuals representing minorities, women, and persons with disabilities. USDA prohibits discrimination in its programs and activities on the basis of race, color, national origin, gender, religion, age, sexual orientation, or disability. Additionally, discrimination on the basis of political beliefs and marital or family status is also prohibited by statutes enforced by USDA (not all prohibited bases apply to all programs). Persons with disabilities who require alternate means for communication of program information (Braille, large print, audio tape, etc.) should contact the USDA's Target Center at (202) 720-2600 (voice and TDD). USDA is an equal opportunity provider and employer.
Animal and Plant Health Inspection Service, USDA.
Notice of public meeting.
This is to notify all interested parties, including individuals and entities possessing, using, or transferring federally listed biological agents and toxins, that a meeting will be held to provide specific regulatory guidance related to the Federal Select Agent Program established under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. The meeting is being organized by the U.S. Department of Agriculture's Animal and Plant Health Inspection Service, the Department of Health and Human Services' Centers for Disease Control and Prevention, and the Department of Justice's Federal Bureau of Investigation. Issues to be discussed include entity registration, security risk assessments, biosafety requirements, and security measures.
The meeting will be held on May 10, 2011, from 8 a.m. to 6 p.m. Persons who wish to attend the meeting must register by April 12, 2011.
The meeting will be held at the USDA Agricultural Research Service, National Centers for Animal Health Disease Center, Building 20, 1920 Dayton Avenue, Ames, IA.
Title II of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, “Enhancing Controls on Dangerous Biological Agents and Toxins” (sections 201 through 231), provides for the regulation of certain biological agents and toxins by the Department of Health and Human Services (subtitle A, sections 201-204) and the Department of Agriculture (subtitle B, sections 211-213), and
The meeting announced here is an opportunity for the regulated community (i.e., registered entity responsible officials, alternate responsible officials, and entity owners) and other interested individuals to obtain specific regulatory guidance and information on standards concerning biosafety and biosecurity issues related to the Federal Select Agent Program. CDC, APHIS, and FBI representatives will be present at the meeting to address questions and concerns. Entity registration, security risk assessments, biosafety requirements, and security measures are among the issues that will be discussed.
All attendees must register in advance of the meeting. For those unable to attend in person, the meeting will be available at no cost as a Webcast for a limited number of registrants. There are two ways to register depending upon the U.S. citizenship status of the attendee:
• Citizens of the United States must complete a U.S. citizen registration form online at
• Non-citizens (including lawful permanent residents) must complete a non-citizen registration form online at
Travel directions to the National Centers for Animal Health Disease Center are available on the Internet at
If you require special accommodations, such as a sign language interpreter, please call or write one of the individuals listed under
Forest Service, USDA.
Notice of availability.
In accordance with Section 3(b) of the Wild and Scenic Rivers Act, the USDA Forest Service, Washington Office, is transmitting the final boundary of the Yellow Dog National Wild and Scenic River to Congress.
Information may be obtained by contacting Bill Baer, Recreation Program Manager, Ottawa National Forest, E6248 US Hwy. 2, Ironwood, MI 49938, (906) 932-1330, ext. 342.
The Yellow Dog Wild and Scenic River boundary is available for review at the following offices: USDA Forest Service, Office of the Chief, 1400 Independence Avenue, SW., Washington, DC 20024; USDA Forest Service, Eastern Region, Suite 400, 626 East Wisconsin Avenue, Milwaukee, WI 53202 and; Ottawa National Forest, E6248 US Hwy. 2, Ironwood, MI 49938. A detailed legal description is available upon request.
The Michigan Scenic River Act of 1992 (Pub. L. 102-249-March 3, 1992) designated the Yellow Dog River, Michigan, as a National Wild and Scenic River, to be administered by the Secretary of Agriculture. As specified by law, the boundary will not be effective until ninety days after Congress receives the transmittal.
Forest Service, USDA.
Notice of meeting.
The Humboldt County Resource Advisory Committee (RAC) will meet in Eureka, California. The committee meeting is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act.
The meeting will be held April 12, 2011, from 5 p.m. to 7 p.m.
The meeting will be held at the Six Rivers National Forest Office, 1330 Bayshore Way, Eureka, CA 95501.
Adam Dellinger, Committee Coordinator, at (707) 441-3569; e-mail
The meeting is open to the public. The agenda includes a public comment period, discussion on project monitoring, and a vote on projects to recommend for funding.
Forest Service, USDA.
Notice of meeting.
The Hood/Willamette Resource Advisory Committee will meet in Salem, Oregon. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to present the 2012 project proposals to the committee.
The meeting will be held on April 22, 2011, and begin at 9:30 a.m.
The meeting will be held at Salem Office of the Bureau of Land Management Office; 1717 Fabry Road SE; Salem, Oregon; (503) 375-5646. Written comments should be sent to James Rudisill, McKenzie River Ranger District, 57600 McKenzie Hwy, McKenzie Bridge, OR 97413. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at McKenzie River Ranger District, 57600 McKenzie Hwy, McKenzie Bridge, Oregon.
James Rudisill, McKenzie River Ranger District, 57600 McKenzie Hwy, McKenzie Bridge, OR 97413; (541) 822-7203; E-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Election of chairperson; (2) Decision on overhead rate for 2012 projects; (3) Presentation of 2012 Projects; and (4) Public Forum. The Public Forum is tentatively scheduled to begin at 10:15 a.m. Time allotted for individual presentations will be limited to 4-5 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits for the Public Forum. Written comments may be submitted prior to the April 22nd meeting by sending them to James Rudisill at the address given above.
Forest Service, USDA.
Notice of meeting.
The South Central Idaho Resource Advisory Committee will meet in Sun Valley, Idaho. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is to hear project presentations and decide which projects will be funded.
The meeting will be held March 30, 2011, 9:30 a.m.
The meeting will be held at the Sun Valley City Hall Council Chambers, 810 Elkhorn Road, Sun Valley, Idaho 83353. Written comments should be sent to the Sawtooth National Forest, Attn: Julie Thomas, 2647 Kimberly Road East, Twin Falls, Idaho 83301. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Sawtooth National Forest, 2647 Kimberly Road East, Twin Falls, Idaho 83301. Visitors are encouraged to call ahead to 208-737-3200 to facilitate entry into the building.
Julie Thomas, Designated Federal Official, Sawtooth National Forest, 208-737-3200.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: This Resource Advisory Committee meeting will specifically deal with project presentations and funding of projects. The agenda for the meeting can be found at
Forest Service, USDA.
Notice of meeting.
The Daniel Boone National Forest Resource Advisory Committee will meet in London, Kentucky. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The primary objective of the meeting is to review proposed project applications.
Monday, April 11, 2011 at 6 p.m. EST.
The meeting will be held at the Cumberland Valley Area Development District, 342 Old Whitley Road, London, KY 40744 in a meeting room on the basement floor. Written comments should be sent to Kimberly Morgan, Daniel Boone National Forest, 1700 Bypass Road, Winchester, KY 40391. Comments may also be sent via e-mail to
Kimberly Morgan, RAC Coordinator, USDA, Daniel Boone National Forest, 1700 Bypass Road, Winchester, KY 40391; (859) 745-3100; E-mail
The meeting is open to the public. The following business will be conducted: (1) Review committee operating guide; (2) Discuss mileage reimbursement for committee members; (3) Review and discuss submitted project applications; (4) Vote to approve project proposals; and (5) Public Comments. Persons who wish to bring related matters to the attention of the Resource Advisory Committee may file written statements with the committee staff before or after the meeting.
Agricultural Research Service, National Agricultural Library, USDA.
Notice and Request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget (OMB) regulations at 5 CFR part 1320, this notice announces the National Agricultural Library's intent to request approval for renewal of an information collection relating to existing nutrition education and training materials targeting low-income persons. This voluntary form gives Supplemental Nutrition Assistance Program Education (SNAP-Ed) providers the opportunity to share resources that they have developed or used.
Comments on this notice must be received by 65 days after date of publication in the
Address all comments concerning this notice to Gina Hundley Gomez, Technical Information Specialist, Food and Nutrition Information Center, National Agricultural Library, 10301 Baltimore Avenue, Beltsville, MD 20705-2351, telephone (301) 504-5414 or fax (301) 504-6409.
Submit electronic comments to
The Sharing Form is available for completion online at the SNAP-Ed Connection Web site. Individuals may also print the form and return it via fax or mail. The form consists of four parts. These various sections include: Part 1 consisting of three questions about the responder; Part 2 with nine questions about the resource; Part 3 with five questions about the resource development; and Part 4 with six questions about ordering/obtaining the resource. Responders are asked to complete only relevant sections of the form. Instructions about which sections to complete, based on one's relationship to the resource, are provided in Part 1. For instance, those that use the resource but are neither its developer or distributor would only complete Parts 1 and 2.
This form enables FNIC to inform nutrition educators of existing nutrition education and training materials targeting low-income Americans. This identification of existing materials will help educators spend their monies wisely by reducing duplication of efforts in nutrition education material development and by aiding in identifying areas of need for nutrition education resource development.
Copies of this information collection and related instructions may be obtained without charge from the SNAP-Ed Connection Sharing Center at
Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance for the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and the assumptions used; (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 those who respond, including the use of appropriate automated, electronic, mechanical, or other technology. Comments should be sent to the address in the preamble. All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record.
Rural Housing Service and Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the above-named Agencies to request an extension for the currently approved information collection in support of the servicing of Community and Direct Business Programs Loans and Grants.
Comments on this notice must be received by May 17, 2011 to be assured of consideration.
Beth Jones, Senior Loan Specialist, Community Programs Direct Loans and
The purpose of this collection is to establish security servicing policies, assist recipients in meeting the objectives of the loans and grants, repay loans on schedule, comply with agreements, and protect the Government's financial interest. Routine servicing responsibilities include collection of payments, compliance reviews, security inspections, review of financial reports, determining applicant/borrower eligibility and project feasibility for various servicing actions, monitoring delinquent accounts, and supervision activities.
Supervision by the Agencies include, but is not limited to: Review of budgets, management reports, audits and financial statements; performing security inspections; providing, arranging, or recommending technical assistance; evaluating environmental impacts of proposed actions by the borrower; performing civil rights compliance reviews; and assisting in the development of workout agreements.
Information will be collected by the field offices from applicants, borrowers, consultants, lenders, and attorneys.
Failure to collect information could result in improper servicing of these loans.
Copies of the information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, at (202) 692-0040.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agencies, including whether the information will have practical utility; (b) the accuracy of the Agencies' estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (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 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 may be sent to Jeanne Jacobs, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, 7th Floor, Room 701, 300 7th Street, SW., Washington, DC 20024. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Washington Dulles Foreign Trade Zone Inc., grantee of FTZ 137, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09 (correction 74 FR 3987, 1/22/09); 75 FR 71069-71070, 11/22/10). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on March 14, 2011.
FTZ 137 was approved by the Board on April 17, 1987 (Board Order 350, 52 FR 13489, 4/23/87) and expanded on March 12, 1999 (Board Order 1029, 64 FR 14213, 3/24/99) and on April 5, 2001 (Board Order 1152, 66 FR 19424, 4/16/01).
The current zone project includes the following sites:
The grantee's proposed service area under the ASF would be Frederick, Clarke, Loudoun, Fairfax, Fauquier, Prince William, and Arlington Counties and the City of Alexandria, Virginia, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Washington Dulles International Airport Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project under the ASF as follows: renumber the non-contiguous portion (16 acres) of Site 4 as Site 7; Sites 1-6 would become “magnet” sites; and, Site 7 would become a usage-driven site. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the
In accordance with the Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is May 17, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 1, 2011.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Greater Cincinnati Foreign Trade Zone, Inc. grantee of FTZ 47, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09 (correction 74 FR 3987, 1/22/09); 75 FR 71069-71070, 11/22/10). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on March 15, 2011.
FTZ 47 was approved by the Board on January 12, 1979 (Board Order 141, 44 FR 4003, 1/19/79) and expanded on December 23, 1993 (Board Order 674, 59 FR 1371, 1/10/94) and September 27, 2001 (Board Order 1194, 66 FR 52740, 10/17/01).
The current zone project includes the following sites:
The grantee's proposed service area under the ASF would be Boone, Kenton and Campbell Counties, Kentucky, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Cincinnati Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include Site 1 as a “usage-driven” site and Site 2 as a “magnet” site. The applicant is also requesting that 15 acres be deleted from Site 1 due to changed circumstances. Because the ASF only pertains to establishing or reorganizing a general-purpose zone, the application would have no impact on FTZ 47's authorized subzones.
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is May 17, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 1, 2011.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
International Trade Administration.
Notice.
The Department of Commerce, 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.
Written comments must be submitted on or before May 17, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Tracy M. Rollins, (202) 482-0073,
The Special American Business Internship Training (SABIT) Programs of the Department of Commerce's International Trade Administration (ITA), are a key element in the U.S. Government's efforts to support the economic transition of Eurasia (the former Soviet Union) and to support economic growth in other regions of the world, including Pakistan and the Middle East,
Applications are sent to program candidates via electronic mail, facsimile, or mail upon request. Applications are also available to be downloaded from the SABIT English and Russian language Web sites at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request from an interested party, the Department of Commerce (the Department) initiated an administrative review of the antidumping duty order covering certain tin mill products from Japan. The period of review is August 1, 2009, through July 31, 2010. Based on the withdrawal of request from U.S. Steel Corporation (U.S. Steel), we are now rescinding this administrative review.
John Drury or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0195 or (202) 482-3019 respectively.
On August 2, 2010, the Department published a notice announcing an opportunity for interested parties to request an administrative review of the antidumping duty order on certain tin mill products from Japan.
The merchandise subject to the antidumping duty order is certain tin mill products from Japan. The scope of this order includes tin mill flat-rolled products that are coated or plated with tin, chromium or chromium oxides. Flat-rolled steel products coated with tin are known as tin plate. Flat-rolled steel products coated with chromium or chromium oxides are known as tin-free steel or electrolytic chromium-coated steel. The scope includes all the noted tin mill products regardless of thickness, width, form (in coils or cut sheets), coating type (electrolytic or otherwise), edge (trimmed, untrimmed or further processed, such as scroll cut), coating thickness, surface finish, temper, coating metal (tin, chromium, chromium oxide), reduction (single-or double-reduced), and whether or not coated with a plastic material. All products that meet the written physical description are within the scope of this order unless specifically excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of this order:
—Single reduced electrolytically chromium coated steel with a thickness 0.238 mm (85 pound base box) (+/−10%) or 0.251 mm (90 pound base box) (+/−10%) or 0.255 mm (+/−10%) with 770 mm (minimum width) (+/−1.588 mm) by 900 mm (maximum length if sheared) sheet size or 30.6875 inches
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”), under HTSUS subheadings 7210.11.0000, 7210.12.0000, 7210.50.0000, 7212.10.0000, and 7212.50.0000 if of non-alloy steel and under HTSUS subheadings 7225.99.0090, and 7226.99.0180 if of alloy steel. Although the subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive.
In accordance with 19 CFR 351.213(d)(1), the Department will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so.” On February 8, 2011, U.S. Steel withdrew its request for a review of the order with respect to JFE Steel Corporation, Kawasaki Steel Corporation, Nippon Steel Corporation, NKK Corporation, and Toyo Kohan Co., Ltd. Although the party submitted a letter withdrawing their review request after the 90-day regulatory deadline, the Department finds it is reasonable to extend the deadline for withdrawing the review request because it has not yet devoted significant time or resources to the review.
Because of the withdrawal of the request for review and because we received no other requests for review, we are rescinding the administrative review of the order with respect to JFE Steel Corporation, Kawasaki Steel Corporation, Nippon Steel Corporation, NKK Corporation, and Toyo Kohan Co., Ltd. This rescission is in accordance with 19 CFR 351.213(d)(1).
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. For these five companies, the antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce's International Trade Administration is organizing a business development trade mission to Kabul, Afghanistan in September 2011. This mission will be led by a Senior Commerce Department official. Targeted sectors include: Construction (including engineering, architecture, transportation and logistics, and infrastructure); mining (including equipment, technology, and services); agribusiness; and information and communications technology. The mission's goal is to help U.S. companies explore long-term business opportunities in Afghanistan and enhance U.S.-Afghan commercial relations by providing U.S. participants with first-hand market information, access to government decision makers as well as one-on-one meetings with business contacts, including potential agents, distributors, and partners, to position themselves to enter or expand their presence in the targeted sectors.
The Government of the Islamic Republic of Afghanistan (GIRoA) is taking steps to develop its market economy and increase both domestic and foreign private investment. GIRoA continues to develop legal and administrative regulatory frameworks that will lead to a market more conducive to trade, investment and private sector development. For example, Afghanistan adopted an investment law that allows investments to be 100% foreign-owned. Additionally, on October 28, 2010, Afghanistan and Pakistan signed the Afghanistan Pakistan Transit Trade Agreement (APTTA), allowing Afghan container trucks to drive through Pakistan to the Indian border, and also to port cities such as Karachi.
After 30 years of war reconstruction and development efforts are required to grow and stabilize Afghanistan's economy. The GIRoA is committed to promoting economic development, increasing production and earnings, promoting technology transfer, improving national prosperity and advancing Afghans' standard of living in
To support Afghanistan's private sector and promote reconstruction efforts, GIRoA has identified domestic priority sectors needing investment and development in both equipment and services. These priority sectors are: construction and infrastructure, logistics and transportation, mining, agribusiness, and information and communications technology providers.
The economy is beginning to move from one based on state owned enterprises and the informal economy to a more formal market economy. A notable sign of this transition for the U.S. business community is the establishment of an American Chamber of Commerce in Kabul in 2010.
Kabul is the capital of Afghanistan, situated in Kabul Province. With a total metropolitan population of 2.6 million, it is also the largest city in Afghanistan. It is the commercial center for the country, with national Afghan businesses, associations, and GIRoA ministries maintaining a presence in Kabul. Afghanistan's GDP per capita is approximately $500, and has experienced double digit growth in recent years.
The Commerce Department has supported commercial and private sector development in Afghanistan since 2002, and posted a Senior Commercial Officer in Kabul in June 2010.
The goal of the mission is to provide U.S. participants with first-hand market information, access to government decision makers and one-on-one meetings with business contacts, including potential agents, distributors, and partners, so that they can position themselves to enter the Afghan market or expand their business presence in Afghanistan. Thus, the mission seeks to:
• Improve U.S. companies' understanding of commercial opportunities in Afghanistan.
• Facilitate business meetings between U.S. and Afghan businesses to promote the development of U.S. commercial opportunities in Afghanistan.
• Introduce U.S. industry to the Afghan business community and government leaders.
• Provide GIRoA policymakers with U.S. industry feedback on the direction of its commercial reforms.
The business development mission will take place in Kabul, Afghanistan. Participants will meet with Afghan leaders in the public and private sector, learn about the market by participating in Embassy briefings, and explore additional opportunities at networking receptions. Activities will include one-on-one meetings with pre-screened business prospects. (
(The State Department will follow RSO procedure in reference to security within and around the mission event)
This business development mission is designed for a minimum of 10 qualified companies and can accommodate a maximum of 20 participants from the companies accepted. All parties interested in participating in this business development mission to Kabul, Afghanistan, must submit a completed application package for consideration by the U.S. Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and to best satisfy the selection criteria as outlined below. U.S. companies already doing business in the target sectors as well as U.S. companies seeking to enter this market for the first time are encouraged to apply.
After a company has been selected to participate in the mission, a payment to the U.S. Department of Commerce in the form of a participation fee is required. The participation fee is $4,800 for a single participant for a small- or medium-sized enterprise (SME)
Interpretation services for official activities are included in the fee. Expenses for travel, lodging, meals, and incidentals will be the responsibility of each mission participant. Lodging and meals for each participant will cost approximately $150 USD per day.
• An applicant must submit a completed and signed mission application and supplemental application materials, including information on the company's products and/or services, primary market objectives, and goals for participation. If the U.S. Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the application.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content.
Selection will be based on the following criteria:
• Suitability of the company's products or services to the mission goals.
• Applicant's potential for business in Afghanistan.
• Consistency of the applicant's goals and objectives with the stated scope of the mission.
(Additional factors, such as diversity of company, size, type and location, may be considered during the selection process.)
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and will not be considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including posting on the U.S. Department of Commerce trade missions calendar—
Recruitment for the mission will begin immediately and conclude no later than June 24, 2011, by the close of business. Applications received after June 24, 2011, will be considered only if space and scheduling constraints permit.
Business development mission members participate in the mission and undertake related travel at their own risk and are advised to obtain insurance accordingly. Any question regarding insurance coverage must be resolved by the participant. The U.S. Government does not make any representations or guarantees as to the safety or security of participants. Companies should consult the State Department's travel warning for Afghanistan:
Contact
Import Administration, International Trade Administration, Department of Commerce.
Erin Begnal or Raquel Silva, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-1442 or (202) 482-6475, respectively.
On October 26, 2009, the Department of Commerce (“Department”) initiated the administrative review of the antidumping duty order on certain new pneumatic off-the-road tires (“OTR tires”) from the People's Republic of China (“PRC”) for the period February 20, 2008, through August 31, 2009.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the final results in an administrative review within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days.
We determine that it is not practicable to complete the final results of this review within the current deadline because the Department continues to require additional time to analyze issues raised in recent surrogate value submissions, verification exhibits, and case briefs and rebuttals. Therefore, we are extending the time limit for completion of the final results by an additional 30 days, in accordance with section 751(a)(3)(A) of the Act. An additional extension of 30 days from the current deadline of March 18, 2011, would result in a new deadline of April 17, 2011. However, because April 17, 2011, falls on a Sunday, a non-business day, the final results will now be due no later than April 18, 2011, the next business day.
This notice is published pursuant to sections 751(a) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On September 13, 2010, the Department of Commerce (“Department”) published in the
Jamie Blair-Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2615.
On September 22, 2009, the Department initiated this review with respect to two companies upon which an administrative review was requested.
On May 25, 2010, the Department issued a preliminary determination regarding the country of origin of Sacks made from fabric woven in third countries.
We hereby finalize our preliminary decision presented in the Country of Origin Memo of Sacks made from fabric woven in third countries.
On September 20, 2010, Zibo Aifudi notified the Department of its withdrawal and refusal to participate in this ongoing administrative review.
At the
All issues raised in the case and rebuttal briefs by parties to these reviews are addressed in the Issues and Decision Memorandum. A list of the issues which parties raised and to which we respond in the Issues and Decision Memorandum is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document and is on file in the Central Records Unit, Main Commerce Building, Room 7046, and is accessible on the Department's Web site at
The merchandise covered by the order is laminated woven sacks. Laminated woven sacks are bags or sacks consisting of one or more plies of fabric consisting of woven polypropylene strip and/or woven polyethylene strip, regardless of the width of the strip; with or without an extrusion coating of polypropylene and/or polyethylene on one or both sides of the fabric; laminated by any method either to an exterior ply of plastic film such as biaxially-oriented polypropylene (“BOPP”) or to an exterior ply of paper that is suitable for high quality print graphics;
Effective July 1, 2007, laminated woven sacks are classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings 6305.33.0050 and 6305.33.0080. Laminated woven sacks were previously classifiable under HTSUS subheading 6305.33.0020. If entered with plastic coating on both sides of the fabric consisting of woven polypropylene strip and/or woven polyethylene strip, laminated woven sacks may be classifiable under HTSUS subheadings 3923.21.0080, 3923.21.0095, and 3923.29.0000. If entered not closed on one end or in roll form (including sheets, lay-flat tubing, and sleeves), laminated woven sacks may be classifiable under other HTSUS subheadings including 3917.39.0050, 3921.90.1100, 3921.90.1500, and 5903.90.2500. If the polypropylene strips and/or polyethylene strips making up the fabric measure more than 5 millimeters in width, laminated woven sacks may be classifiable under other HTSUS subheadings including 4601.99.0500, 4601.99.9000, and 4602.90.0000. Although HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
In the
Section 776(a)(2) of the Tariff Act of 1930, as amended (“Act”) provides that, if an interested party or any other person: (A) Withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act, the Department shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department shall promptly inform the party submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that party with an opportunity to remedy or explain the deficiency. Section 782(d) of the Act further states that, if the party submits further information that is unsatisfactory or untimely, the administering authority may, subject to subsection (e), disregard all or part of the original and subsequent responses. Section 782(e) of the Act provides that the Department shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority if (1) the information is submitted by the deadline established for its submission, (2) the information can be verified, (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination, (4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the administering authority with respect to the information, and (5) the information can be used without undue difficulties.
Zibo Aifudi responded to the Department's original questionnaire and several supplemental questionnaires, and the Department calculated a company-specific margin for Zibo Aifudi in the
Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of the respondent if it determines that a party has failed to cooperate to the best of its ability. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”
In determining whether a party failed to cooperate to the best of its ability, the Department considers whether a party could comply with the request for information, and whether a party paid insufficient attention to its statutory duties.
In
An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record.
As discussed above, Zibo Aifudi withdrew from participation in this segment of the proceeding and requested that all of its business proprietary submissions be destroyed. Because of this, the Department does not have any record evidence upon which to determine whether Zibo Aifudi is eligible for a separate rate for this review period. Thus, pursuant to Department practice, as Zibo Aifudi has not demonstrated its entitlement to a separate rate, we consider it to be part of the PRC-entity and subject to the PRC-wide rate.
Pursuant to section 776(b) of the Act, we find that the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with requests for information. As noted above, an element of the PRC-wide entity (Zibo Aifudi) informed the Department that it would not participate further in this review. Thus, because the PRC-wide entity refused to participate fully in this proceeding, we find it appropriate to use an inference that is adverse to the interests of the PRC-wide entity in selecting from among the facts otherwise available. By doing so, we ensure that the companies that are part of the PRC-wide entity will not obtain a more favorable result by failing to cooperate than had they cooperated fully in this review.
As stated above, the PRC-wide entity (including Zibo Aifudi) withdrew from this administrative review. Because of this, we find it necessary, under sections 776(a)(2) and 776(b) of the Act, to use AFA as the basis for these final results of review for the PRC-wide entity. In accordance with the Department's practice, as AFA, we have assigned to the PRC-wide entity the rate of 91.73 percent, which is the highest rate assigned in any segment of this proceeding.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. As described in the SAA, it is the Department's practice to use secondary information from the petition, the final determination, or any previous review under section 751 of the Act concerning the subject merchandise.
In this case, the AFA rate we are assigning to the PRC-wide entity, including Zibo Aifudi, is the highest rate from any segment of this proceeding, and is the petition rate in the less-than-fair-value investigation.
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin.
Based on our analysis as described above, we find that the margin of 91.73 percent is reliable and has relevance. As the 91.73 percent rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the calculated rate of 91.73 percent, which is the current PRC-wide rate, is in accordance with the requirement of section 776(c) of the Act that secondary information be corroborated to the extent practicable (
The weighted-average dumping margins
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For assessment purposes, we calculated importer (or customer)-specific assessment rates for merchandise subject to this review. Where appropriate, we calculated an
The following cash-deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of review (except that if the rate for a particular company is
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Comment 1: Preliminary Decision Regarding Country of Origin
1a. Procedures in Determining Country of Origin
1b. Department's Decision of Country of Origin of Sacks
1c. Authority to Issue Clarification Instruction to CBP
1d. Finalizing the Country-of-Origin Memorandum
Comment 2: Liquidation Instructions
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from SGL Carbon LLC and Superior Graphite Co. (“Petitioners”), Petitioners in the original investigation, the Department of
Brendan Quinn, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5848.
On October 12, 2010, Petitioners filed a submission alleging that UKCG, a company located in the United Kingdom, is engaged in circumvention of the
On October 29, 2010, the Department received a letter on behalf UKCG in rebuttal to Petitioners' request for a scope or anti-circumvention ruling.
On November 24, 2010, the Department requested that Petitioners supplement their scope request with certain additional information to aide in our decision whether to initiate a formal scope or anti-circumvention inquiry.
On November 29, 2010, the Department received, via e-mail, a document from the British Embassy in support of UKCG's arguments, which the Department placed on the record of this proceeding.
On January 13, 2011, the Department extended the deadline to initiate an anti-circumvention inquiry by 21 days, pursuant to 19 CFR 351.302(b).
The merchandise covered by this order includes all small diameter graphite electrodes of any length, whether or not finished, of a kind used in furnaces, with a nominal or actual diameter of 400 millimeters (16 inches) or less, and whether or not attached to a graphite pin joining system or any other type of joining system or hardware. The merchandise covered by this order also includes graphite pin joining systems for small diameter graphite electrodes, of any length, whether or not finished, of a kind used in furnaces, and whether or not the graphite pin joining system is attached to, sold with, or sold separately from, the small diameter graphite electrode. Small diameter graphite electrodes and graphite pin joining systems for small
As noted above, Petitioners have requested the Department initiate either a scope proceeding to clarify whether the scope of the
In the instant case, although Petitioners have provided substantial record evidence which may support the initiation of either type of inquiry, the Department has concluded that the issues raised by the parties are better addressed in the context of an anti-circumvention proceeding pursuant to section 781(b) of the Act and 19 CFR 351.225(h).
Section 781(b)(1) of the Act provides that the Department may find that importation of certain merchandise completed or assembled in a third country constitutes circumvention of an antidumping duty order if:
(A) The merchandise imported into the United States is of the same class or kind as merchandise produced in a foreign country that is subject to the order.
(B) Before importation to the United States, such imported merchandise is completed or assembled in another foreign country from merchandise which is either subject to the order or is produced in the foreign country subject to the order.
(C) The process of assembly or completion in the third country is minor or insignificant.
(D) The value of the merchandise produced in the country subject to the order amounts to a significant portion of the total value of the merchandise exported to the United States.
(E) Such action would be appropriate to prevent evasion of the order in question. In evaluating these aforementioned criteria, section 781(b)(3) of the Act further instructs the Department to take into account:
1. The pattern of trade, including sourcing patterns.
2. Whether the manufacturer or exporter of the merchandise in question from the country subject to the order (
3. Whether imports into the third country (
In their October 12, 2010, Initiation Request, Petitioners presented the following evidence with respect to each of the aforementioned statutory criteria:
Petitioners contend that the SDGE products exported to the United States by UKCG are identical to those subject to the
Petitioners further assert that the unfinished SDGE component inputs imported by UKCG from the PRC for further processing before exportation to the United States are themselves subject merchandise.
Petitioners note that PRC producers have invested extensively in the SDGE industry, which includes significant investment in both manufacturing facilities and production equipment worth many millions of dollars. Petitioners contend that the bulk of this investment goes to the heavy industrial processes required for the production of SDGE (
Petitioners argue that, although they do not have detailed information regarding research and development (“R&D”) expenses incurred by either UKCG or Chinese producers of SDGE, as explained in the “Level of Production Processes” section, immediately below, the technology required to manufacture merchandise up to the graphitization process of production (and, thus, the related R&D costs), should greatly exceed the R&D costs associated with finishing of the merchandise and that the R&D costs associated with the finishing of the merchandise are relatively insignificant by comparison.
Petitioners contend that an understanding of the production of subject merchandise is essential to the analysis of whether or not UKCG is engaged in minor or insignificant production. As such, Petitioners detail the SDGE production process, demonstrating how raw materials are formed, baked, impregnated (if needed), re-baked, graphitized, finished and packaged. Petitioners emphasize the significant energy needed to graphitize the product and emphasize that, upon completion of this process, the electrode becomes an “unfinished” SDGE subject to the
As detailed above, Petitioners note that the facilities needed to form, bake, impregnate, re-bake, graphitize and pack the subject merchandise in the PRC for exportation to the United Kingdom (
As noted above, Petitioners assert that, based on proprietary information supplied in the Petition, the cost of finishing a graphite electrode represents an insignificant amount of the total cost of manufacture for a SDGE.
Petitioners argue that, for reasons summarized above, the value of merchandise produced in the PRC represents the vast majority of the total value of the product.
Petitioners reassert that UKCG imports graphitized components of SDGE (which, they contend are, subject merchandise) from PRC producers of subject merchandise, which are then finished and packaged for export to the United States as a product of the United Kingdom. Petitioners note that UKCG has relied on a European Binding Origin Information (“BOI”) ruling as support for the U.K. origin designation it applied to the merchandise in question. However, Petitioners argue, this ruling was issued for the purposes of trade within the European common market, and has no legal status in the United States. Moreover, Petitioners conclude that their arguments, as summarized above, invalidate any claim by UKCG that the finishing process is so substantial that it warranted a change in country of origin from the PRC to the United Kingdom.
Petitioners argue that, since the filing of the antidumping Petition and issuance of the preliminary determination in the initial less than fair value (“LTFV”) investigation in August 2008,
Though Petitioners do not claim that UKCG is affiliated with any of the PRC producers from which it sourced the merchandise in question, they cite to UKCG's existing business relationship with PRC producers of merchandise subject to the
As noted above, Petitioners identify the following trends since the filing of the antidumping petition and issuance of the preliminary determination of the initial LTFV investigation in August 2008: UKCG has shipped Chinese-sourced subject merchandise to the United States in significant and increasing quantities; UKCG exports of SDGE represent the vast majority of the total SDGE exports from the United Kingdom to the United States; and customs data from the PRC and United States show a significant increase in PRC exports of SDGE to the United Kingdom and U.K exports to the United States.
On October 29, 2010, the Department received a letter on behalf UKCG in rebuttal to Petitioners' October 12, 2010, requests for a scope and/or anti-circumvention ruling. In this submission, UKCG asserts that there is no need for the Department to undertake a full scope or anti-circumvention inquiry, arguing that the unfinished SDGE component inputs in question have already been excluded from the scope of the
On November 12, 2010, Petitioners submitted a response to UKCG's Rebuttal Comments. Petitioners first note their disagreement with UKCG's categorization of the unfinished SDGE components in question as artificial graphite rods not subject to the
On November 24, 2010, the Department requested that Petitioners supplement their scope request with certain additional information to aide in the Department's decision to initiate a formal scope or anti-circumvention inquiry.
In their November 30, 2010, response, Petitioners submitted information onto the record regarding U.K. imports under HTS 3801.10.00
• The monthly average volume of imports of merchandise classified under HTS 3801.10.00 from January through August 2008 was 66,208 kg, but in September 2008, the month following the preliminary determination, imports increased to a monthly average of 603,944 kg.
• In the four months between the announcement of the preliminary determination and the final determination, September through December 2008, the average monthly imports were 574,162 kg, but the volume of imports rose to 815,061 kg in January 2009, the month corresponding to the announcement of the final determination.
• The volume of imports, by year, has increased dramatically since the filing of the initial antidumping duty petition, with 2,152,370 kg (averaging 180,198 kg per month) imported in 2008, 3,097,554 kg (averaging 258,130 per month) in 2009, and 8,751,286 kg (annualized, averaging 729,273 kg per month) in 2010.
Petitioners argue that these data demonstrate that the antidumping duty investigation resulted in a significant increase of imports of “unfinished SDGE” into the United Kingdom from the PRC, and allege that this increase is attributable to a scheme undertaken by PRC producers to unlawfully avoid U.S. antidumping duties.
In rebuttal, UKCG asserts that the information submitted by Petitioners in both their Initiation Request and SQR is misleading because it: (a) Misstates the amounts of SDGE exported by UKCG to the United States, (b) misinterprets the significance of UKCG's increase of business with the United States as an attempt to circumvent the Order when it is only a result of increased global marketing on behalf of the company, and (c) draws incorrect conclusions regarding circumvention due to a reliance on publicly available information for HTS subcategory 3801, which is a basket category containing items much more broad than just artificial graphite rods.
UKCG argues that the CBP data used by Petitioners in the Initiation Request to demonstrate the amount of SDGE exported to the United States by UKCG during the relevant time period do not accurately reflect the volume of exports. UKCG also disputes Petitioners' assertion from the Initiation Request that UKCG did not export SDGE to the United States until November 2008 (two months after the Department's announcement of the preliminary determination), and demonstrates that the company had certain exports of SDGE produced in the same manner as the merchandise in question prior to that date.
Furthermore, UKCG attributes its increase in U.S. business to certain factors unrelated to the LTFV investigation and subsequent
• The actual significance of any U.S. sales being overstated, because the low base of existing sales volume would yield any increase (or decrease) to appear significant in percentage terms, even though the actual change in sales volume was considerably less meaningful.
• Internal efforts to obtain a larger global market share, which predate the
• The increase in demand due to the shortage of electrodes in the United States, created by high antidumping duties imposed on PRC SDGE.
Finally, UKCG argues that it is misleading for Petitioners to point to a swing in the import figures for a broad-basket 3801.10.00 “artificial graphite” HTS subcategory, such as the large increase in January 2009, and attribute such an increase to UKCG's sales of finished SDGE to the United States, since the total amount UKCG sales of finished SDGE to the United States during that year was lower than the imports of unfinished artificial graphite imported into the country in that single month. UKCG also points out that, though Petitioners submitted import data extracted from the uktradeinfo.com website in the November 30, 2010 SQR, they did not provide other information available at the same Web site, which shows that over 40 U.K. companies imported products under HTS 3801.10.00 in 2008. UKCG asserts that this information undermines Petitioners' arguments regarding circumvention, and shows the import data for HTS 3801.10.00 to be overstated and unreliable.
Based on our analysis of Petitioners' anti-circumvention inquiry request, summarized above, the Department determines that Petitioners have satisfied the criteria to warrant an initiation of a formal anti-circumvention inquiry pursuant to section 781(b)(1) of the Act and 19 CFR 351.225(h). In accordance with 19 CFR 351.225(e), if the Department finds that the issue of whether a product is included within the scope of an order cannot be determined based solely upon the application and the descriptions of the merchandise, the Department will notify by mail all parties on the Department's scope service list of the initiation of a scope inquiry, including an anti-circumvention inquiry. In addition, in accordance with 19 CFR 351.225(f)(1)(ii), a notice of the initiation of an anti-circumvention inquiry issued under paragraph (e) of this section will include a description of the product that is the subject of the anti-circumvention inquiry,
With regard to whether the merchandise exported to the United States is of the same class or kind as subject merchandise produced in the PRC, Petitioners have presented information to the Department indicating that, pursuant to section 781(b)(1)(A) of the Act, the merchandise being exported from the United Kingdom by UKCG may be of the same class or kind as SDGE produced in the PRC, which are subject to the
With regard to completion or assembly of merchandise in a foreign country, pursuant to section 781(b)(1)(B) of the Act, Petitioners have also presented information to the Department indicating that the SDGE exported from the United Kingdom are being processed by UKCG from unfinished components which are produced in the PRC (
Further, we find that Petitioners have provided sufficient evidence to demonstrate that the processing performed in the United Kingdom may be minor or insignificant, as described by sections 781(b)(1)(C) and 781(b)(2) of the Act. In particular, we find that Petitioners' submissions suggest that the level of overall investment, R&D, sophistication of production processes (and the degree to which they alter the fundamental characteristics of the merchandise), and production facilities needed for UKCG to machine and finish the components in question into finished SDGE for exportation to the United States may be insignificant, especially when compared to the level of investment, facilities, R&D, and processes required by SDGE producers in the PRC to manufacture said components. We find that Petitioners
With respect to the value of the merchandise produced in the PRC pursuant to section 781(b)(1)(D) of the Act, Petitioners rely on their “minor or insignificant processing” arguments summarized above, as well as certain proprietary cost information provided in the initial
Regarding whether action is needed to prevent evasion of the
Finally, we find that Petitioners have provided sufficient evidence, in both their Initiation Request and SQR, to fulfill the additional initiation criteria specified in section 781(b)(3) of the Act. Though Petitioners do not show that UKCG is affiliated with any PRC producer of subject merchandise, they demonstrate that the company has a business relationship with PRC producers of subject merchandise. Furthermore, information provided by Petitioners regarding imports and exports under HTS 3801 and 8545, suggests that (a) U.K. importers are sourcing PRC-produced unfinished SDGE components in increasing quantities, and (b) exports of finished SDGE from the United Kingdom have increased since the beginning of the initial SDGE investigation. Although UKCG provides evidence to demonstrate that Petitioners' information may be distorted or misstated due to certain factors, the Department intends to seek further information on this pattern of trade issue during the course of this inquiry, and will request greater detail as to the nature of UKCG's relationship with PRC producers of subject merchandise and timing of sales and sourcing. As such, though we recognize UKCG's concerns regarding the conclusions reached by Petitioners in their analysis of the pattern of trade data placed on the record, we do not agree with UKCG that the Department should conclude that such concerns are sufficient to refrain from further inquiry.
Therefore, for the reasons stated above, we have determined that Petitioners have provided sufficient basis for the Department to initiate a formal anti-circumvention inquiry concerning the
This anti-circumvention inquiry covers UKCG only. If, within sufficient time, the Department receives a formal request from an interested party regarding potential circumvention of the
The Department will, following consultation with interested parties, establish a schedule for questionnaires and comments on the issues. The Department intends to issue its final determination within 300 days of the date of publication of this initiation pursuant to section 781(f) of the Act. This notice is published in accordance with 19 CFR 351.225(f).
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of decision of panel.
On March 10, 2011, the binational panel issued its decision in the review of the determination on remand made by the International Trade Commission, respecting Light-Walled Rectangular Pipe and Tube from Mexico: Final Determination of Material Injury to a U.S. Industry (NAFTA Secretariat File Number USA-MEX-2008-1904-04). The binational panel affirmed the International Trade Commission's determination on remand. Copies of the panel's order are available from the U.S. Section of the NAFTA Secretariat.
Valerie Dees, United States Secretary, NAFTA Secretariat, Suite 2061,14th and Constitution Avenue, Washington, DC 20230, (202) 482-5438.
Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established
Import Administration, International Trade Administration, Department of Commerce.
Robert Palmer, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; (202) 482-6905.
On November 29, 2010, the Department of Commerce (“Department”) published in the
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. Petitioner's request was submitted within the 90 day period and, thus, is timely. Because Petitioner's withdrawal of its request for review is timely and because no other party requested a review of the aforementioned companies, in accordance with 19 CFR 351.213(d)(1), we are partially rescinding this review with respect to the 87 companies listed above.
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. For those companies for which this review has been rescinded and which have a separate rate, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice for those companies with a separate rate.
For the above companies that are part of the PRC-wide entity, the Department cannot order liquidation at this time because although they are no longer under review as a separate entity, they may still be under review as part of the PRC-wide entity. Therefore, the Department cannot order liquidation instructions at this time because their respective entries may be under review in the ongoing administrative review. The Department intends to issue assessment instructions for the PRC-wide entity, 15 days after publication of the final results of the ongoing administrative review.
This notice serves as a final reminder to importers for whom this review is being rescinded, as of the publication date of this notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the
This notice also serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
Raquel Silva or Frances Veith, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6475 or (202) 482-4295, respectively.
On September 1, 2010, the Department of Commerce (“the Department”) published a notice of opportunity to request an administrative review of the antidumping duty order on certain new pneumatic off-the-road tires (“OTR tires”) from the People's Republic of China (“PRC”) for the period of review (“POR”) September 1, 2009, through August 31, 2010.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the party that requested the review withdraws the request within 90 days of the date of publication of the notice of initiation of the requested review. The Secretary may also extend this time limit if the Secretary decides that it is reasonable to do so. On November 15, 2010, GTC timely withdrew its request for a review of its exports. On January 24, 2011, Full World timely withdrew its request for a review of its exports. On January 26, 2011, Bridgestone timely withdrew its request for review of Starbright, Hangzhou Zhongce, KS Holding, Laizhou Xiongying, and Qingdao Taifa.
On February 17, 2011, Mai Shandong withdrew its request for a review of its exports. Although the deadline to withdraw requests for review was January 26, 2011, the Department notes that this administrative review remains in its early stages, and significant resources have not yet been expended on this review as a whole. Therefore, the Department is accepting Mai Shandong's withdrawal.
Because no additional party requested a review of GTC, Starbright, Hangzhou Zhongce, KS Holding, Laizhou Xiongying, Qingdao Taifa, Full World, and Mai Shandong, the Department hereby rescinds the administrative review of OTR tires with respect to these entities in accordance with 19 CFR 351.213(d)(1). This administrative review will continue with respect to TUTRIC and Weihai Zhongwei because requests for review of these companies remain.
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. For GTC, Starbright, KS Holding, Laizhou Xiongying, and Full World, which each had previously established eligibility for a separate rate, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of this notice.
Because Hangzhou Zhongce, Qingdao Taifa, and Mai Shandong remain part of the PRC entity, their respective entries may be under review in the ongoing administrative review. Accordingly, the Department will not order liquidation of entries for Hangzhou Zhongce, Qingdao Taifa, or Mai Shandong. The Department intends to issue assessment instructions for the PRC entity, which will cover any entries by Hangzhou Zhongce, Qingdao Taifa, and Mai Shandong, 15 days after publication of the final results of the ongoing administrative review.
This notice serves as a final reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to
This notice is issued and published in accordance with section 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is organizing a Trade Mission to South Africa September 19-23, 2011, to help U.S. firms find business partners and help export equipment and services in Johannesburg and Cape Town, South Africa.
Targeted sectors are:
•
• Electrical generating equipment.
• Renewable energy technologies.
• Clean coal technology.
• Transmission and distribution equipment and technology.
• Energy efficiency building technologies and products.
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• Crop production equipment and machinery.
• Irrigation equipment and technology.
• Crop storage and handling.
• Precision farming technologies.
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• Training and education services and systems.
• Educational and training franchises.
• Educational materials.
Although focused on the sectors above, the mission also will consider participation from companies in other appropriate sectors as space permits.
This mission will be led by a senior Department of Commerce Official and will include business-to-business matchmaking with local companies, market briefings, and meetings with key government officials.
South Africa represents the largest economy and most sophisticated and diversified industrial and services sectors in Sub-Saharan Africa. Recent reports show the economy recovering well from the recent global recession. Projections are for economic growth in gross domestic product (GDP) to average five percent for the next decades as the country continues to develop. Sectors such as energy, health care, agriculture, vehicles, processed foods, and others are poised for solid growth in South Africa. The country also stands to benefit from rapid growth anticipated in many of its Sub-Saharan African trading partners, where South African-based companies have strong market prospects. In 2009, total U.S.-South Africa trade was $10.3 billion, a significant decrease from 2008 levels of $16.4 billion. However, 2010 trade figures for January to September show growth in trade of over 40 percent above corresponding 2009 levels and indicate a strong recovery in U.S. exports to the country. Leading U.S. exports are machinery, vehicles, aircraft, chemicals, IT equipment and services.
State-owned utility Eskom produces about 95 percent of the electricity used in South Africa and about 60 percent of the electricity generated on the African continent. Its operations incorporate power generation, transmission and distribution. Although Eskom has a total of 24 power stations in commission, with a total generating capacity of 42,011 MW, this has proved inadequate for the current electricity demand.
Eskom is building additional power stations and power lines on a massive scale to meet rising electricity demand in South Africa. Eskom's capacity expansion budget is $56 billion (R385 billion) up to 2013 and is expected to grow to more than R1 trillion ($144 billion) by 2026. It plans to double capacity to 80,000 MW by 2026. Since 2005 Eskom commissioned projects totaling an additional 4,454 MW and plans to deliver an additional 16,304 MW in power station capacity by 2017. This creates opportunities for U.S. firms to provide products, services and the latest clean coal technologies to the South African energy market.
According to the South African Government, 30 percent of all new power generation will be the responsibility of independent power producers (IPPs). In response to South Africa's plans to limit its CO
The country's power supply shortfall has accelerated the need to diversify Eskom's energy mix and its move towards alternative energy sources, including various forms of renewable energy. The South African Department of Energy (DoE) recently released the Integrated Resource Plan (IRP 2010) for public comment. The IRP calls for diversifying sources of power and will call for renewable energy sources to supply 16 percent and nuclear sources to supply 14 percent of power by 2030. In addition, detailed work is currently under way to determine a range of near-term electricity demand-reduction options that could yield the equivalent of some 5,000 MW and help stabilize the South African system between now and 2016. Specific opportunities include renewable-energy generation, cogeneration, own generation, municipal generation and other independent power producer programs.
As part of its financial restructuring and capital expansion program, Eskom has received authorization to increase electricity prices to consumers by an average of 25 percent per year for the next three years, and will seek additional increases for the following several years. The effect of steadily rising energy costs for industry and consumers will be to create market opportunities for a wide range of energy saving technologies ranging from energy efficient building products, lighting, heating and air conditioning, metering, and similar products and technologies.
South Africa has by far the most modern, productive and diverse agricultural economy in Sub-Saharan Africa. It is a net exporter of agricultural and food products and is self sufficient in food products. South Africa offers U.S. exporters of agricultural equipment
Agriculture is a leading component of the South African economy, employing a million people, and agro-industrial activity amounts to about fifteen percent of GDP, with substantial growth potential. Although eighty percent of South Africa's land is used for agriculture only 15 percent of that is arable, with the rest used for pastoral and other purposes. South Africa's recent broad-based agriculture empowerment charter (AgriBEE) aims to boost land reforms and black ownership of farmland to 30 percent by 2014. With the implementation of AgriBEE creating new land owners from previously disadvantaged communities, mission participants will have an opportunity to explore new emerging market opportunities for equipment and technology.
Many of South Africa's universities are world-class academic institutions, at the cutting edge of research in certain spheres such as mining and engineering. At about 5.3 percent of GDP and 20 percent of total state expenditure, South Africa has one of the highest rates of public investment in education in world terms. However, there are still huge imbalances in education in the country. The greatest challenges lie in the poorer, rural provinces like the Eastern Cape and KwaZulu-Natal. One of the country's greatest challenges is persistent unemployment as it grapples with the effects of a large unskilled labor force. For that reason, improving education and skills development are priorities for the government.
There is potential for U.S. companies offering training programs that will address the serious shortage of skilled labor force in sectors such as hospitality, utilities, construction, and transportation. On the business skills area, there is a need for programs that offer job skills assessment systems which help employers select, hire, train and develop prospective employees. Other opportunities include “learning centers” franchises, focusing on after-school care and tuition, both for primary and secondary students/learners, in the areas of arithmetic, math and science respectively. Franchising opportunities also exist for adult learning centers, given the large number of people with gaps in their formal education, in the area of languages, computer training, and general business skills.
The goal of the South Africa Trade Mission is to provide U.S. participants with first-hand market information, one-on-one meetings with business contacts, including potential agents, distributors and partners so they can position themselves to enter or expand their presence in the South African market. South Africa, with its well developed business and financial sector, its indigenous multinational enterprises, substantial foreign investment, and well developed infrastructure, is often seen as the point of access to develop markets throughout Sub-Saharan Africa. Subject to prior consultation and confirmations, mission participants will have the opportunity to explore contacts with local firms active in the region and will have the option of extending their stay for additional business development activities in South Africa or meetings in neighboring countries.
The South Africa Mission will visit both Johannesburg and Cape Town, allowing participants to access the two largest markets and business centers in the country. In each city, participants will meet with new business contacts.
The final schedule and potential site visits will depend on the availability of local government and business officials, specific goals of mission participants, and air travel schedules.
All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. The mission is designed for a minimum of 15 and a maximum of 20 companies to participate in the mission from the applicant pool. U.S. companies already doing business in the target markets as well as U.S. companies seeking to enter these markets for the first time are encouraged to apply.
After a company has been selected to participate on the mission, a participation fee to the U.S. Department of Commerce is required. The participation fee for one representative is $2,125 for a small or medium-sized enterprise (SME)
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the U.S. Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least 51 percent U.S. content of the value of the finished product or service.
• Suitability of the company's products or services to the mission goals.
• Applicant's potential for business in South Africa, including likelihood of exports resulting from the mission.
• Consistency of the applicant's goals and objectives with the stated scope of the mission.
Additional factors, such as diversity of company size, type, location, and demographics, may also be considered during the selection process.
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including publication in the
Recruitment for the mission will begin immediately, and conclude at 11:59 p.m. on July 18, 2011. Applications received after 11:59 p.m. on July 18, 2011, will be considered only if space and scheduling constraints permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Northeast Region, NMFS (Assistant Regional Administrator), has made a preliminary determination that an Exempted Fishing Permit (EFP) application contains all of the required information and warrants further consideration. In support of research conducted by the Coonamessett Farm Foundation, Inc. (CFFI), this EFP would grant exemptions from the limited access scallop days-at-sea (DAS) program to allow CFFI to conduct tests with its low profile excluder dredge (CFFI dredge). In addition, limited access and limited access general category (LAGC) vessels would be authorized to temporarily retain fish that would otherwise be restricted by commercial fishing regulations. Such regulations include minimum fish sizes; fish possession limits; species quota closures; prohibited fish species, not including species protected under the Endangered Species Act; and gear-specific fish possession restrictions. The Assistant Regional Administrator has made a preliminary determination that the activities authorized under this EFP would be consistent with the goals and objectives of the Atlantic sea scallop Fishery Management Plan (FMP). However, further review and consultation may be necessary before a final determination is made to issue an EFP.
Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed EFPs.
Comments must be received on or before April 4, 2011.
You may submit written comments by any of the following methods:
•
•
•
Christopher Biegel, Fisheries Management Specialist, 978-281-9112.
CFFI has been awarded a research grant through the Commercial Fisheries Research Foundation titled, “Testing of a Low Profile Excluder Dredge for Winter Flounder Bycatch Reduction.” The goal of this research is to examine how modifications to the CFFI excluder dredge will impact the bycatch of winter flounder by commercial scallop vessels. The research will consist of three or four trips of 5 to 7 days each, for a total of 21 days, and deploy the CFFI dredge to document the impacts of dredge modifications on catch and bycatch rates. Over the course of the project, there will be 240 tows of less than 30 minutes at 4.5 knots. The vessel is expected to catch the following: Scallops 45,000 lb (20,412 kg); winter flounder 4,000 lb (1,815 kg); yellowtail flounder 300 lb (136 kg); monkfish 2,000 lb (907 kg); and little skate 8,000 lb (3,629 kg). All catch will be discarded after standard species composition, size, and catch rate data have been collected. The gear testing would occur between April 2011 and April 2012, in open areas of offshore of Massachusetts and Rhode Island at a depth of 15 to 30 fathoms (30-60 m), including Cape Cod Bay, South Channel, and Southern New England.
CFFI submitted a complete EFP application on February 4, 2011, requesting exemption allowing commercial fishing vessels to fish
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Applications for four new scientific research permits.
Notice is hereby given that NMFS has received four scientific research permit application requests relating to Pacific salmonids. The proposed research is intended to increase knowledge of species listed under the Endangered Species Act (ESA) and help guide management and conservation efforts. The applications may be viewed online at:
Comments or requests for a public hearing on the applications must be received at the appropriate address or fax number (
Written comments on the applications should be sent to the Protected Resources Division, NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274. Comments may also be sent via fax to 503-230-5441 or by e-mail to
Garth Griffin, Portland, OR (
The following listed species are covered in this notice:
Chinook salmon (
Chum salmon (
Steelhead (
Coho salmon (
Scientific research permits are issued in accordance with section 10(a)(1)(A) of the ESA (16 U.S.C. 1531
Anyone requesting a hearing on an application listed in this notice should set out the specific reasons why a hearing on that application would be appropriate (
NOAA Fisheries' Northwest Fisheries Science Center (NWFSC) is seeking a 5-year permit to conduct yearly survey trawling operations off the West Coast of the U.S. The researchers would take individuals from all the species covered in this notice except for OC coho. The purpose of the research is to provide fisheries-independent indices of stock abundance to support stock assessment models for commercially and recreationally harvested groundfish species. The survey would collect data on 90+ fish species in the ocean to fulfill the mandates of the Magnuson-Stevens Sustainable Fisheries Act (MSA). The survey would run from May through October every year and cover the area from the US-Canada border at Cape Flattery, Washington to the US-Mexico border, at depths ranging from 55 meters to 1,280 meters. The objectives of the survey are to: (1) Quantify the distribution and relative abundance of commercially valuable groundfish species, with an emphasis on rockfish species of the genus
The research would benefit listed species by increasing our understanding of the connections between various oceanographic conditions and fish survival in the marine environment. This greater understanding, in turn, will be used to inform future decisions regarding listed species management and recovery. The researchers do not intend to kill any listed fish, but a few may die as an inadvertent result of the proposed activities.
The NWFSC is seeking a 5-year permit to conduct biennial acoustic surveys of Pacific hake along the West Coast of the U.S. during odd-numbered years. The researchers would take individuals from all species covered in this notice except for SR steelhead. The age-specific estimates of total population abundance derived from the surveys are a key data source for the joint U.S.-Canada Pacific hake stock assessments and, ultimately, are critical to informing decisions about U.S., Tribal, and international harvest levels. This integrated acoustic and trawl survey is used to assess the distribution, biology, and status and trends in abundance of Pacific hake. The survey would be conducted from June to September; it would target aggregations of Pacific hake along the continental shelf and break. The survey would extend from Monterey, California to Dixon Entrance, Alaska, in depths from about 50 meters to 1,500 meters. The NWFSC is seeking authorization for the U.S. portion of the survey. The goal of the survey is to obtain representative catches of acoustically-detected organisms.
The research would benefit listed species by helping make the West Coast hake fishery more specific to the target species and thereby reducing bycatch of other species. The researchers do not intend to kill any listed fish, but a few may die as an inadvertent result of the proposed activities.
The NWFSC is seeking a 5-year permit to conduct Pacific hake Acoustic Inter-vessel Calibration (IVC) research and gear trial cruises along the West Coast of the U.S. to make hake stock assessment and improve hake biomass estimates. The researchers would take individuals from all species covered in this notice except for OC coho and SR steelhead. The goals of the IVC research are to: (1) Compare acoustic estimates for hake between two vessels; (2) research acoustic differentiation between hake and Humboldt squid (
The proposed research would benefit listed species by generating information that, ultimately, will be used to help reduce the number of listed fish being accidentally caught in the hake fishery. The researchers do not intend to kill any listed fish, but a few may die as an inadvertent result of the proposed activities.
The NWFSC is seeking a 5-year permit to test the efficacy of an open escape window bycatch reduction device to reduce Chinook salmon and rockfish bycatch in the Pacific hake fishery. The proposed activities would be conducted from May to September off the Central Oregon coast and, although it is unlikely, sampling may also occur off the coasts of Washington and northern California. All research tows would take place over the continental shelf and slope in depths of less than 1,000 meters; all captured fish would be identified, and some would be retained for the scientific analyses necessary for the research.
The research would benefit listed species by helping develop fishing methods and equipment that allow large-scale fisheries (like the hake fishery) to catch fewer threatened and endangered fish. The researchers do not intend to kill any listed fish, but a few may die as an inadvertent result of the proposed activities.
This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the applications, associated documents, and comments submitted to determine whether the applications meet the requirements of section 10(a) of the ESA and Federal regulations. The final permit decisions will not be made until after the end of the 30-day comment period. NMFS will publish notice of its final action in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Sonoma County Water Agency (SCWA) for an Incidental Harassment Authorization (IHA) to take marine mammals incidental to Russian River estuary management activities. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to SCWA to take, by Level B Harassment only, several species of marine mammals during the specified activity.
Comments and information must be received no later than April 18, 2011.
Comments on the application should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910. The mailbox address for providing e-mail comments is
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (
Ben Laws, Office of Protected Resources, NMFS, (301) 713-2289.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by Level B harassment as defined below. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. If authorized, the IHA would be effective for one year from date of issuance.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
NMFS received an application on February 15, 2011 from SCWA for renewal of an IHA for the taking, by Level B harassment only, of marine mammals incidental to activities conducted in management of the Russian River estuary in Sonoma County, California. SCWA was first issued an IHA, valid for a period of one year, on April 1, 2010 (75 FR 17382). Management activities include management of a naturally-formed barrier beach at the mouth of the river in order to minimize potential for flooding of properties adjacent to the Russian River estuary and enhance habitat for juvenile salmonids, and biological and physical monitoring of the estuary. Flood control-related breaching of barrier beach at the mouth of the river may include artificial breaches, as well as construction and maintenance of a lagoon outlet channel. The latter activity, an alternative management technique conducted to mitigate impacts of flood control on rearing habitat for Endangered Species Act (ESA)-listed salmonids, occurs only from May 15 through October 15 (hereafter, the “lagoon management period”). Species known from the haul-out at the mouth of the Russian River, and analyzed in this document, include the harbor seal (
Breaching of naturally formed barrier beach at the mouth of the Russian River requires the use of heavy equipment (
The estuary is located about 97 km (60 mi) northwest of San Francisco in Sonoma County, near Jenner, California (see Figure 1 of SCWA's application). The Russian River watershed encompasses 3,847 km
The Russian River estuary is a drowned river valley formed via erosion during the early Pleistocene, when sea level was lower (Erskian and Lipps 1977). The bed of the estuary rises above mean sea level near Duncans Mills, about five miles from the river's mouth. Ocean tides can influence water surface elevation in the river as far as ten miles upstream near Monte Rio (Corps and SCWA 2004), and directly affect water elevation about five to seven miles upstream in the vicinity of Austin Creek (Erskian and Lipps 1977; Corps and SCWA 2004). Tides range approximately six feet and are diurnal (Erskian and Lipps 1977).
Closure of the estuary's bar is a complex process related to tides, waves and swells, sediment transport, and river flows (Largier 2008; RREITF 1994). Prior to dams and diversions in the Russian River watershed, the estuary was likely open to ocean tides for several months between late fall and early spring, when high stream flows coincided with larger coastal waves. As stream flow waned in the spring, sufficient hydraulic energy was not available to maintain a direct connection to the ocean. This, combined with the presence of bar building wave events, would often cause a barrier beach to form at the outlet of the estuary (NMFS 2008). Historically, flows during the summers were low and were unlikely to have breached the barrier beach once it formed. This pattern of open estuarine conditions in the late fall, winter and early spring, followed by estuary closure to ocean tides in the spring, summer, or early fall, remains evident today, though it is altered by management activity in the Russian River watershed.
Estuaries in California can become productive freshwater lagoons following formation of a barrier beach (Smith 1990), dependent upon the time of initial closure and freshwater inflow to the estuary. Conversion to freshwater occurs when freshwater from upstream builds up on top of the salt water layer, gradually forcing the salt water layer to seep back into the ocean through the barrier beach, or when freshwater outflow entrains some of the salt water at the boundary between fresh and salt layers; the process may take one month or more (Smith 1990). Until the conversion process has completed, stratification of the water by salinity
Closure of the bar can result in flooding of low-lying properties adjacent to the estuary. When the estuary closes, it may breach naturally or require mechanical breaching to open. Table 1 describes breaching events occurring in the estuary from 1996-2010. Artificial breaching may have occurred as far back as the 1800s; the County of Sonoma Department of Public Works (DPW) was responsible for breaching beginning in the early 1950s. SCWA took over breaching from DPW in 1995 (SCWA 2004). The historic method of artificial breaching causes the lagoon to return to a tidal system reconnected to the ocean, creating a near marine environment, with shallow depths and high salinity throughout most of the water column. In some areas salinity stratification contributes to low dissolved oxygen at the bottom. These conditions are neither natural nor optimal for the survival of juvenile salmonids (NMFS 2008).
Within the Russian River watershed, the U.S. Army Corps of Engineers (Corps), SCWA and the Mendocino County Russian River Flood Control and Water Conservation Improvement District (MCRRFCD) operate and maintain Federal facilities and conduct activities in addition to the previously described estuary management, including flood control, water diversion and storage, instream flow releases, hydroelectric power generation, channel maintenance, and fish hatchery production. The Corps, SCWA, and the MCRRFCD conducted these activities for many years before salmonid species in the Russian River—Central California Coast (CCC) steelhead (
If a project is found to jeopardize a species or adversely modify its critical habitat, NMFS must develop a Reasonable and Prudent Alternative (RPA) to the proposed project in coordination with the Federal action agency and any applicant. A component of the RPA described in the 2008 BiOp requires SCWA to collaborate with NMFS and modify their estuary water level management in order to reduce marine influence (
The analysis contained in the BiOp found that maintenance of lagoon conditions was necessary only for the lagoon management period. See NMFS' BiOp (2008) for details of that analysis. As a result of that determination, there are three components to SCWA's estuary management activities: (1) Lagoon outlet channel management, during the lagoon management period only, required to accomplish the dual purposes of flood risk abatement and maintenance of juvenile salmonid habitat; (2) traditional artificial breaching, with the sole goal of flood risk abatement; and (3) physical and biological monitoring.
SCWA, in compliance with the BiOp, adaptively manages estuary water surface elevations during the lagoon management period. Maintaining the lagoon water levels in a perched state that is also below flood stage requires an outlet channel to convey water from the estuary to the ocean over the beach berm. Active management of estuarine/lagoon water levels commences following the first closure of the barrier beach during this period. When this happens, SCWA monitors lagoon water surface elevation and creates an outlet channel when water levels in the estuary are between 4.5 and 7.0 ft (1.4-2.1 m) in elevation. Water levels above 4.0 ft (1.2 m) are expected to indicate reduced marine influence and would be likely to improve habitat. The ideal lagoon water level is 7.0-9.0 ft (2.1-2.7 m)—the BiOp specifies a target average daily water surface elevation of 7.0 ft during the lagoon management period, and flood stage is reached at 9.0 ft. However, in practice, this target leaves SCWA with little margin for error. The Russian River Estuary Outlet Channel Adaptive Management Plan (hereafter, “Plan”; PWA 2010) employs an incremental approach to channel management, favoring smaller, more frequent modifications over larger, less frequent, modification with less certain outcome. To the extent feasible, estuary water levels will initially be managed at the lower end of the 4.0-9.0 ft range in order to: (1) Reduce the scour potential associated with larger water surface differences between the lagoon and ocean and (2) provide a larger flood buffer if the channel closes and water levels rise. As experience is gained from implementing the channel and observing its response, SCWA will seek to make larger changes during each incremental modification. These larger changes will decrease the duration and frequency of management activity, thereby reducing the disturbance impact over time. Management practices will be incrementally modified over the course of the lagoon management period in an effort to improve performance in meeting the goals of the BiOp while preventing flooding.
The adaptive lagoon outlet channel management plan seeks to work with natural processes and site conditions to maintain an outlet channel that reduces tidal inflow of saline water into the estuary, as described in the Plan. The location of the outlet channel, at the interface of the estuary and the surf zone, is a dynamic system influenced by river discharge, ocean waves, and sand transport (
The target outlet channel is subject to two failure modes: (1) Closure caused by deposition, leading to rising water levels and possible flooding, and (2) breaching caused by scour, leading to tidal exchange and marine conditions in the estuary. Conceptual models of these conditions may be found in Figures 2-4 of the Plan. Of the two failure modes, breaching is more detrimental. Once breaching occurs, exposing the estuary to tidal water levels and saline inflow, the estuary may persist in a breached state for weeks or months before the barrier beach can re-form. Closure results in increasing estuary water levels, which allows time for further management action to prevent flooding.
A pilot channel will be created in the sandbar at a sufficient depth to allow river flows to begin transporting sand to the ocean. The pilot channel would not be excavated as deeply, narrowly, or with as steep a gradient as typical artificial breaching channels, which are designed to allow the current velocities to erode a wider and deeper channel and downcut into the barrier beach. While the channel is dug, it will remain disconnected from the estuary by a portion of the sand bar. Excavated sand will be placed on the beach adjacent to the pilot channel. In the past, excavation work associated with artificial breaching has usually generated a maximum of 1,000 yd
Some uncertainty remains about the exact outlet channel configuration that may best achieve the target performance criteria. This uncertainty arises from the dynamic natural setting for the outlet channel and from the unquantified tradeoffs between channel specifications which may benefit one performance criterion while impairing another criterion. For example, to reduce the likelihood of closure, it may be beneficial to locate the mouth of the channel further north where the coastline's aspect is more sheltered from waves from the north. However, extending the channel's length to the northern location necessitates narrowing its width to keep excavation within currently-permitted volumes (
The wide/short approach will be to construct the channel in the same general location and alignment as the preexisting channel (
The quantity of sand moved will depend on antecedent beach topography. Once either the wide/short or narrow/long planform alignment is selected, limits on excavation volume will largely set channel dimensions. Any sand excavated from the channel will be placed on the adjacent beach and graded to heights of approximately 1-2 ft (0.3-0.6 m) above existing grade. The placed sand will be distributed in such a way as to minimize changes to beach topography. The bed will be excavated 0.5-1 ft (0.15-0.3 m) below the lagoon water level along its entire length, to achieve target channel depths upon initiation of flow. The bed slope should be nearly flat within the outlet channel to minimize the likelihood of bed scour, which may result in breaching. The target range of water depths, 0.5-2 ft, is constrained on the upper end by the maximum depth at which the channel is likely to be stable (
Ideally, initial implementation of the outlet channel would produce a stable channel for the duration of the lagoon management period. However, the sheer number of variables and lack of past site-specific experience likely preclude this outcome. Given the conservative approach, in which excavation technique disproportionately seeks to avoid failure by breaching rather than closure, attempted channel implementation is most likely to fail through closure. In this case, succeeding excavation attempts may be required. The precise number of excavations would depend on uncontrollable variables such as seasonal ocean wave conditions (
SCWA's lagoon outlet channel management activities would involve the use of heavy equipment and increased human presence on the beach, in order to excavate and maintain an outlet channel from the lagoon to the ocean. SCWA has estimated that a maximum of three such events could be necessary during this period. During pupping season, management events may occur over a maximum of two consecutive days per event and all estuary management events on the beach must be separated by a minimum no-work period of one week. The use of heavy equipment and increased human presence has the potential to harass hauled-out marine mammals by causing movement or flushing into the water. Mitigation and monitoring measures described later in this document are designed to minimize this harassment to the lowest practicable level.
Upon successful construction of an outlet channel, adaptive management, or maintenance, may be required for the channel to continue achieving performance criteria. In order to reduce disturbance to seals and other wildlife, as well as beach visitors, the amount and frequency of mechanical intervention will be minimized. As technical staff and maintenance crews gain more experience with implementing the outlet channel and observing its response, maintenance is anticipated to be less frequent, with events of lesser intensity. During pupping season, machinery may only operate on up to two consecutive working days, including during initial construction of the outlet channel. In addition, SCWA must maintain a one week no-work period between management events during pupping season, unless flooding is a threat, to allow for adequate disturbance recovery period. During the no-work period,
As described previously, the estuary may close naturally throughout the year as a result of barrier beach formation at the mouth of the Russian River. Although closures may occur at any time of the year, the mouth usually closes during the spring, summer, and fall (Heckel 1994; Merritt Smith Consulting 1997, 1998, 1999, 2000; SCWA and Merritt Smith Consulting 2001). Natural breaching events occur when estuary water surface levels exceed the height of the barrier beach and overtop it, scouring an outlet channel that reconnects the Russian River to the Pacific Ocean. Closures result in lagoon formation in the estuary and, as water surface levels rise, flooding may occur. For decades, artificial breaching has been performed in the absence of natural breaching, in order to alleviate potential flooding of low-lying shoreline properties near the town of Jenner.
Estuary management events, as described previously in this document, may be carefully engineered for the dual purpose of reducing flood risk while maintaining lagoon conditions appropriate for juvenile salmonids. However, artificial breaching, as defined here, is conducted for the sole purpose of reducing flood risk, and may occur at any time of the year. As prescribed in the BiOp, artificial breaching is limited to two events during the lagoon management period, but is unlimited outside the lagoon management period. Any estuary management event occurring outside of the lagoon management period will be an artificial breaching.
Breaching has historically been performed in accordance with the Russian River Estuary Study 1992-1993 (Heckel 1994). The beach berm is artificially breached by SCWA when the water surface elevation in the estuary is 4.5-7.0 ft (1.4-2.1 m) as read at the Jenner gage. Breaching is performed by creating a deep cut in the closed beach berm, approximately 100 ft long by 25 ft wide and 6 ft deep (30 x 8 x 2 m), by moving up to 1,000 yd
After the last portion of the beach berm is removed, water typically begins flowing out the channel at high velocities, scouring and enlarging the channel to widths of 50-100 ft (15-30 m). As the channel evolves and meanders, it may reach lengths in excess of 400 ft (122 m). After breaching, the estuary is subject to saline water inflow throughout incoming tides. As with other outlet channel management activities, sand is placed onto the beach adjacent to the pilot channel. The size of the pilot channel may vary depending on the height of the sandbar to be breached, the tide level, and the water surface elevation in the estuary.
Artificial breaching activities occur in accordance with the BiOp, and primarily occur outside the lagoon management period,
SCWA's artificial breaching activities would involve the use of heavy equipment and increased human presence on the beach, in order to breach the barrier between the lagoon and the ocean. The use of heavy equipment and increased human presence has the potential to harass hauled-out marine mammals by causing movement or flushing into the water. Mitigation measures described later in this document are designed to minimize this harassment to the lowest practicable level.
Implementation of the lagoon outlet channel adaptive management plan requires monitoring to measure changes in the bar and channel elevation, lengths, and widths, as well as flow velocities and observations of the bed structure (to identify bed forms and depth-dependent grain size distribution indicative of armoring) in the channel. In addition to the activities described for the lagoon outlet channel adaptive management plan, SCWA is required by the BiOp and other state and Federal permits to collect biological and physical habitat data in conjunction with estuary management. Fisheries seining and trapping, water quality monitoring, invertebrate/sediment sampling, and physical habitat measurements require the use of boats and nets in the estuary. Boating and other monitoring activities occur in the vicinity of river haul-outs (
Harbor seals are the most common species inhabiting the haul-out at the mouth of the Russian River (Jenner haul-out). California sea lions and northern elephant seals have also been observed infrequently in the project area. In addition to the Jenner haul-out, there are eight additional haul-outs nearby (
Harbor seals in the eastern Pacific inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. In California, approximately 400-600 harbor seal haul-outs are widely distributed along the mainland and on offshore islands, including intertidal sandbars, rocky shores and beaches (Hanan 1996).
The harbor seal population in California is estimated at approximately 34,233 (Carretta
In general, harbor seals do not undertake long migrations, but do travel 300-500 km on occasion to find food or suitable breeding areas (Herder 1986). Harbor seals are rarely found in pelagic waters and typically stay within the tidal and intertidal zones. On land, harbor seals haul out on rocky outcrops, mudflats, sandbars and sandy beaches with unrestricted access to water and with minimal human presence. Haul-out sites are important as resting sites for harbor seals, who feed opportunistically in shallow waters on fish, crustaceans, and cephalopods. Harbor seals are typically solitary while foraging, although small groups have been observed. They normally choose isolated sites for pupping, which normally occurs at the Russian River from March until late June, and sometimes into early July. The Jenner haul-out is the largest in Sonoma County.
A substantial amount of monitoring effort has been conducted at the Jenner haul-out and surrounding areas. Concerned local residents formed the Stewards' Seal Watch Public Education Program in 1985 to educate beach visitors and monitor seal populations. State Parks Volunteer Docents continue this effort towards safeguarding local harbor seal habitat. On weekends during the pupping and molting season (approximately March-August), volunteers conduct public outreach and record the numbers of visitors and seals on the beach, other marine mammals observed, and the number of boats and kayaks present.
Ongoing monthly seal counts at the Jenner haul-out were begun by J. Mortenson in January 1987, with additional nearby haul-outs added to the counts thereafter. In addition, local resident E. Twohy began daily observations of seals and people at the Jenner haul-out in November 1989.
The number of seals present at the Jenner haul-out generally declines during bar-closed conditions (Mortenson 1996). SCWA's pinniped monitoring efforts from 1996 to 2000 focused on artificial breaching activities and their effects on the Jenner haul-out. Seal counts and disturbances were recorded from one to two days prior to breaching, the day of breaching, and the day after breaching (Merritt Smith Consulting 1997, 1998, 1999, 2000; SCWA and Merritt Smith Consulting 2001). In each year, the trend observed was that harbor seal numbers generally declined during a beach closure and increased the day following an artificial breaching event. Heckel (1994) speculated that the loss of easy access to the haul-out and ready escape to the sea during bar-closed conditions may account for the lower numbers. Table 4 shows average daily seal counts recorded during SCWA monitoring of breaching events from 1996-2000, representing bar-closed conditions, when seal numbers decline.
Mortenson (1996) observed that pups were first seen at the Jenner haul-out in late March, with maximum counts in May. In this study, pups were not counted separately from other age classes at the haul-out after August due to the difficulty in discriminating pups from small yearlings. From 1989 to 1991, Hanson (1993) observed that pupping began at the Jenner haul-out in mid-April, with a maximum number of pups observed during the first two weeks of May. This corresponds with the peaks observed at Point Reyes, where the first viable pups are born in March and the peak is the last week of April to early May (SCWA 2011). Based on this information, pupping season at the Jenner haul-out is conservatively defined here as March 15 to June 30.
California sea lions range from southern Mexico to British Columbia, Canada. The entire U.S. population has been estimated at 238,000, and grew at a rate of approximately six percent annually between 1975 and 2005 (Carretta
California sea lions exhibit seasonal migration patterns organized around their breeding activity. Sea lions breed at large rookeries in the Channel Islands in southern California, and on both sides of the Baja California peninsula, typically from May to August. Females tend to remain close to the rookeries throughout the year, while males migrate north after the breeding season in the late summer before migrating back south to the breeding grounds in the spring (CDFG 1990). No established rookeries are known north of Point Reyes, California, but large numbers of subadult and non-breeding or post-breeding male California sea lions are found throughout the Pacific Northwest. There is a mean seasonal pattern of peak numbers occurring in the northwest during fall, but local areas show high
Solitary California sea lions have occasionally been observed at or in the vicinity of the haul-out (Merritt Smith Consulting 1999, 2000). Individual sea lions were observed near the mouth of the Russian River in November and December of 2009; a single individual was observed hauled-out on one occasion in November 2009. Juvenile sea lions were observed during the summer of 2009 at the Patty's Rock haul-out, and some sea lions were observed during monitoring of peripheral haul-outs in October 2009. The occurrence of individual California sea lions in the action area may generally occur from September through April, but is infrequent and sporadic.
Populations of northern elephant seals in the U.S. and Mexico are derived from a few tens or hundreds of individuals surviving in Mexico after being nearly hunted to extinction (Stewart
Northern elephant seals breed and give birth in California and Baja California, Mexico, primarily on offshore islands from December to March (Stewart
Northern elephant seals range along the entire California coast, with breeding occurring in dense rookeries on offshore islands and at several mainland locations. From April to November, they feed at sea or haul out to molt at rookeries. Elephant seals feed at night in deep water, primarily on fish and cephalopods (CDFG 2009). Entanglement in marine debris, fishery interactions, and boat collisions are the main threats to elephant seals.
Censuses of pinnipeds at the mouth of the Russian River have been taken at least semi-monthly since 1987. Elephant seals were noted from 1987-95, with one or two elephant seals typically counted during May censuses, and occasional records during the fall and winter (Mortenson and Follis 1997). A single, tagged northern elephant seal sub-adult was present at the Jenner haul-out from 2002-07. This individual seal, which was observed harassing harbor seals also present at the haul-out, was generally present during molt and again from late December through March. A single juvenile elephant seal was observed at the Jenner haul-out in June 2009. The occurrence of individual northern elephant seals in the action area has generally been infrequent and sporadic from December through March in the past ten years.
As described previously, a significant body of monitoring data exists for pinnipeds at the mouth of the Russian River. In addition, pinnipeds have co-existed with regular estuary management activity for decades, as well as with regular human use activity at the beach, and are likely habituated to human presence and activity. Nevertheless, SCWA's estuary management activities have the potential to harass pinnipeds present on the beach. During breaching operations, past monitoring has revealed that some or all of the seals present typically move or flush from the beach in response to the presence of crew and equipment, though some may remain hauled-out. No stampeding of seals—a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus—has been documented since SCWA developed protocols to prevent such events in 1999. While it is likely impossible to conduct required estuary management activities without provoking some response in hauled-out animals, precautionary mitigation measures, described later in this document, ensure that animals are gradually apprised of human approach. Under these conditions, seals typically exhibit a continuum of responses, beginning with alert movements (
Therefore, based on a significant body of site-specific data, harbor seals are unlikely to sustain any harassment that may be considered biologically significant. Individual animals would, at most, flush into the water in response to maintenance activities but may also simply become alert or move across the beach away from equipment and crews. California sea lions and northern elephant seals have been observed as less sensitive to stimulus than harbor seals during monitoring at numerous other sites. For example, monitoring of pinniped disturbance as a result of abalone research in the Channel Islands showed that while harbor seals flushed at a rate of 84 percent, California sea lions flushed at a rate of only sixteen percent. The rate for elephant seals declined to 0.2 percent (VanBlaricom 2010). In the unlikely event that either of these species is present during management activities, they would be expected to display a minimal reaction to maintenance activities—less than that expected of harbor seals.
Although the Jenner haul-out is not known as a primary pupping beach, pups have been observed during the pupping season; therefore, NMFS has evaluated the potential for injury, serious injury or mortality to pups. There is a lack of published data regarding pupping at the mouth of the Russian River, but SCWA monitors have observed pups on the beach. No births were observed during monitoring in 2010, but were inferred based on signs indicating pupping (
Similarly, the period of mother-pup bonding, critical time needed to ensure pup survival and maximize pup health, is not expected to be impacted by estuary management activities. Harbor seal pups are extremely precocious, swimming and diving immediately after birth and throughout the lactation period, unlike most other phocids which normally enter the sea only after weaning (Lawson and Renouf 1985; Cottrell
Based on extensive monitoring data, NMFS has preliminarily determined that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (
The purposes of the estuary management activities are to improve summer rearing habitat for juvenile salmonids in the Russian River estuary and/or to minimize potential flood risk to properties adjacent to the estuary. These activities would result in temporary physical alteration of the Jenner haul-out, but are essential to conserving and recovering endangered salmonid species, as prescribed by the BiOp. These salmonids are themselves prey for pinnipeds. In addition, with barrier beach closure, seal usage of the beach haul-out declines, and the three nearby river haul-outs may not be available for usage due to rising water surface elevations. Breaching of the barrier beach, subsequent to the temporary habitat disturbance, would likely increase suitability and availability of habitat for pinnipeds. Biological and water quality monitoring would not physically alter pinniped habitat.
Construction of the lagoon outlet channel would alter the beach by creating a shallow outlet channel to convey river flow over the sandbar and minimize or eliminate tidal exchange during the lagoon management period. The gentle slope of the outlet channel would allow seals to travel through the channel, although the shallow depths would likely not allow for swimming through the channel. Depending on the barrier beach height and the location of the river's thalweg when the beach closes, part of the outlet channel may be constructed in areas where seals typically haul out. Artificial breaching activities, as opposed to lagoon outlet channel creation, alter the habitat by creating a pilot channel through the closed sandbar. The location of the pilot channel is dependent on the height and width of the sandbar and the location of the river's thalweg. The pilot channel could be constructed in areas where seals typically haul out. Construction of pilot channels for the lagoon outlet channel and artificial breaching events requires excavated sand to be sidecast on the beach. Any sand excavated would be graded on the adjacent beach in such a way as to minimize changes to beach topography.
During SCWA's pinniped monitoring associated with artificial breaching activities from 1996 to 2000, the number of harbor seals hauled out declined when the barrier beach closed and then increased the day following an artificial breaching event (Merritt Smith Consulting 1997, 1998, 1999, and 2000; SCWA and Merritt Smith Consulting 2001). This response to barrier beach closure followed by artificial breaching is anticipated to continue. However, it is possible that the number of pinnipeds using the haul-out could decline during the extended lagoon management period, when SCWA would seek to maintain a shallow outlet channel rather than the deeper channel associated with artificial breaching. Collection of baseline information during the lagoon management period is included in the monitoring requirements described later in this document. SCWA's previous monitoring, as well as Twohy's daily counts of seals at the sandbar (Table 3) indicate that the number of seals at the haul-out declines from August to October, so management of the lagoon outlet channel (and managing the sandbar as a summer lagoon) would have little effect on haul-out use during the latter portion of the lagoon management period. The early portion of the lagoon management period coincides with the pupping season. Past monitoring during this period, which represents some of the longest beach closures in the late spring and early summer months, shows that the number of pinnipeds at the haul-out tends to fluctuate, rather than showing the more straightforward declines and increases associated with closures and openings seen at other times of year (Merritt Smith Consulting 1998). This may indicate that seal haul-out usage during the pupping season is less dependent on bar status. As such, the number of seals hauled out from May through July would be expected to fluctuate, but is unlikely to respond dramatically to the absence of artificial breaching events. Regardless, any impacts to habitat resulting from SCWA's management of the estuary during the lagoon management period are not in relation to natural conditions, but rather in relation to conditions resulting from SCWA's discontinued approach of artificial breaching during this period.
Changes in haul-out elevation regularly occur with the tides at this site and any habitat that would be impacted by sidecast sand would be temporary. Pinnipeds seeking to haul out would still have access to the estuary/lagoon waters and would likely continue to naturally flush into the water during high water surface elevation periods. Therefore, the natural cycle of using the Jenner haul-out on a daily basis is not expected to change. Modification of habitat resulting from construction of the lagoon outlet channel or artificial breaching pilot channel would also be temporary in nature. Harbor seals are regularly observed crossing overland from the Pacific Ocean to haul out on the estuary side of the beach, even in bar-open conditions, so it is anticipated that seals would continue to use the haul-out in bar-closed, lagoon conditions.
In summary, there will be temporary physical alteration of the beach. However, natural opening and closure of the beach results in the same impacts to habitat; therefore, seals are likely
SCWA complied with the mitigation and monitoring required under the previous authorization. In accordance with the 2010 IHA, SCWA submitted a Report of Activities and Monitoring Results, covering the period of April 1 through December 31, 2010. During the dates covered by the 2010 monitoring report, SCWA conducted one outlet channel implementation event, two artificial breaching events, and associated biological and physical monitoring. During the course of these activities, SCWA did not exceed the take levels authorized under the 2010 IHA.
Monitoring was conducted before, during, and after each of these management events. Monitoring for the July 8 outlet channel implementation was conducted from July 7-9. For each of the two artificial breaching events, monitoring was conducted for four days; monitoring began the day before the event, was conducted on the day of the initial event (which failed in both cases) and on the day of the subsequent effort, and on the day after the successful effort. These dates were September 29-October 2 and October 10-13, respectively. As shown in Table 7, post-event seal counts increased in all cases. In addition, seals began returning to the beach following removal of equipment and crews within thirty minutes for two events (no return was observed due to lack of visibility for the October 12 event), with large numbers of seals returning to the haul-outs within a maximum of three hours.
No injuries or mortalities were observed during 2010, and harbor seal reactions ranged from merely alerting to crew presence to flushing from the beach. Please see SCWA's Monitoring Report for narrative descriptions of each event. Appendix C of the Report contains estuary water surface elevations during baseline and water level management activity monitoring and Appendix F contains weather observations collected during water level management event monitoring. No species other than harbor seals were observed during monitoring. Total observed take of marine mammals resulting from SCWA's estuary management activity during 2010 is shown in Table 7. Total observed take, by harassment only, from three estuary management events, and associated biological and physical monitoring prescribed by the BiOp, was 290 harbor seals. SCWA was authorized to take, by harassment only, 2,861 harbor seals, sixteen California sea lions, and eleven northern elephant seals. While the observed take was significantly lower than the level authorized, it is possible that incidental take in future years could approach the level authorized. Actual take is dependent largely upon the number of water level management events that occur, which is unpredictable. Take of species other than harbor seals depends upon whether those species, which do not consistently utilize the Jenner haul-out, are present. The authorized take, though much higher than the actual take, was justified based on conservative estimated scenarios for animal presence and necessity of water level management. No significant departure from the method of estimation is used for the proposed IHA (
The primary purpose of SCWA's Pinniped Monitoring Plan is to detect the response of pinnipeds to estuary management activities at the Russian River estuary. However, the following questions are also of specific interest:
1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?
2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?
3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer lagoon in the Russian River estuary?
4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?
The baseline data collected in 2010 shows the highest number of pinnipeds observed at the Jenner haul-out during molt and the late part of pupping season (Table 5). The 2010 baseline effort focused on understanding whether tides affected the timing of the use of the Jenner haul-out by harbor seals. With limited data thus far, there does not appear to be a clear pattern indicating whether the haul-out is used by a greater number of seals during high or low tides. Additional evaluation and data is needed to understand the influence of tides on the daily timing of harbor seal use of the Jenner haul-out. It is likely that multiple factors (
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
SCWA has proposed to continue the following mitigation measures, as implemented during the previous IHA, designed to minimize impact to affected species and stocks:
• SCWA crews would cautiously approach the haul-out ahead of heavy equipment to minimize the potential for sudden flushes, which may result in a stampede—a particular concern during pupping season.
• SCWA staff would avoid walking or driving equipment through the seal haul-out.
• Crews on foot would make an effort to be seen by seals from a distance, if possible, rather than appearing suddenly at the top of the sandbar, again preventing sudden flushes.
• During breaching events, all monitoring would be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out in order to minimize potential for harassment.
• A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.
In addition, SCWA has proposed mitigation measures specific to pupping season (March 15-June 30), as implemented in the previous IHA:
• SCWA will maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.
• If a pup less than one week old is on the beach where heavy machinery would be used or on the path used to access the work location, the management action will be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA would consult with NMFS and CDFG to determine the appropriate course of action. SCWA will coordinate with the locally established seal monitoring program (Stewards' Seal Watch) to determine if pups less than one week old are on the beach prior to a breaching event.
• Physical and biological monitoring, as described in Table 2, will not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.
Personnel on the beach would include up to two equipment operators, three safety team members on the beach (one on each side of the channel observing the equipment operators, and one at the barrier to warn beach visitors away from the activities), and one safety team member at the overlook on Highway 1 above the beach. Occasionally, there would be two or more additional people on the beach (SCWA staff or regulatory agency staff) on the beach to observe the activities. SCWA staff would be followed by the equipment, which would then be followed by an SCWA vehicle (typically a small pickup truck, the vehicle would be parked at the previously posted signs and barriers on the south side of the excavation location). Equipment would be driven slowly on the beach and care would be taken to minimize the number of shut downs and start-ups when the equipment is on the beach. All work would be completed as efficiently as possible, with the smallest amount of heavy equipment possible, to minimize disturbance of seals at the haul-out. Boats operating near river haul-outs during monitoring would be kept within posted speed limits and driven as far from the haul-outs as safely possible to minimize flushing seals.
NMFS has carefully evaluated the applicant's mitigation measures as proposed and considered their effectiveness in past implementation, to preliminarily determine whether they are likely to effect the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures includes consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; (3) the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation.
Injury, serious injury, or mortality to pinnipeds would likely result from startling animals inhabiting the haul-out into a stampede reaction, or from extended mother-pup separation as a result of such a stampede. Long-term impacts to pinniped usage of the haul-out could result from significantly increased presence of humans and equipment on the beach. To avoid these possibilities, NMFS and SCWA have developed the previously described mitigation measures. These are designed to reduce the possibility of startling pinnipeds, by gradually apprising them of the presence of humans and equipment on the beach, and to reduce the possibility of impacts to pups by eliminating or altering management activities on the beach when pups are present and by setting limits on the frequency and duration of events during pupping season. During the past fifteen years of flood control management, implementation of similar mitigation measures has resulted in no known stampede events and no known injury, serious injury, or mortality. Over the course of that time period, management events have generally been infrequent and of limited duration. Based upon the SCWA's record of management at the mouth of the Russian River, as well as information from monitoring SCWA's implementation of the improved mitigation measures as prescribed under the previous IHA, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat.
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
The applicant has developed a Pinniped Monitoring Plan which describes the proposed monitoring efforts. This Monitoring Plan can be found on the NMFS Web site at
1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?
2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?
3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer (May 15 to October 15) lagoon in the Russian River estuary?
4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?
In summary, monitoring includes the following:
Seals at the Jenner haul-out are counted twice monthly for the term of the IHA. This baseline information will provide SCWA with details that may help to plan estuary management activities in the future to minimize pinniped interaction. This census begins at local dawn and continues for eight hours. All seals hauled out on the beach are counted every thirty minutes from the overlook on the bluff along Highway 1 adjacent to the haul-out using high powered spotting scopes. Monitoring may conclude for the day if weather conditions affect visibility (
In addition to the census data, disturbances of the haul-out are recorded. The method for recording disturbances follows those in Mortenson (1996). Disturbances would be recorded on a three-point scale that represents an increasing seal response to the disturbance (Table 5). The time, source, and duration of the disturbance, as well as an estimated distance between the source and haul-out, are recorded. It should be noted that only responses falling into Mortenson's Levels 2 and 3 will be considered as harassment under the MMPA, under the terms of this proposed IHA.
Weather conditions are recorded at the beginning of each census. These include temperature, percent cloud cover, and wind speed (Beaufort scale). Tide levels and estuary water surface elevations are correlated to the monitoring start and end times.
In an effort towards understanding possible relationships between use of the Jenner haul-out and nearby coastal and river haul-outs, several other haul-outs on the coast and in the Russian River estuary are monitored as well (
A one-day pre-event channel survey would be made within one to three days prior to constructing the outlet channel. The haul-out would be monitored on the day the outlet channel is constructed and daily for up to the maximum two days allowed for channel excavation activities. Monitoring would also occur on each day that the outlet channel is maintained using heavy equipment for the duration of the lagoon management period. Monitoring of outlet channel construction and maintenance would correspond with that described under the “Baseline” section previously, with the exception that management activity monitoring duration is defined by event duration, rather than being set at eight hours. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.
In an attempt to understand whether seals from the Jenner haul-out are displaced to coastal and river haul-outs nearby when management events occur, other nearby haul-outs are monitored concurrently with monitoring of outlet channel construction and maintenance activities. This provides an opportunity to qualitatively assess whether these haul-outs are being used by seals displaced from the Jenner haul-out during lagoon outlet channel excavation and maintenance. This monitoring would not provide definitive results regarding displacement to nearby coastal and river haul-outs, as individual seals are not marked, but is useful in tracking general trends in haul-out use during lagoon outlet channel excavation and maintenance. As volunteers are required to monitor these peripheral haul-outs, haul-out locations may need to be prioritized if there are not enough volunteers available. In that case, priority would be assigned to the nearest haul-outs (North Jenner and Odin Cove), followed by the Russian River estuary haul-outs, and finally the more distant coastal haul-outs.
Pinniped response to artificial breaching will be monitored at each such event during the term of the IHA. Methods would follow the census and disturbance monitoring protocols described in the “Baseline” section, which were also used for the 1996 to 2000 monitoring events (Merritt Smith Consulting 1997, 1998, 1999, 2000; SCWA and Merritt Smith Consulting 2001). The exception, as for lagoon management events, is that duration of monitoring is dependent upon duration of the event. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.
For all counts, the following information would be recorded in thirty minute intervals: (1) Pinniped counts, by species; (2) behavior; (3) time, source and duration of any disturbance; (4) estimated distances between source of disturbance and pinnipeds; (5) weather conditions (
If, during monitoring, observers sight any pup that might be abandoned, SCWA would contact the NMFS stranding response network immediately and also report the incident to NMFS' Southwest Regional Office and NMFS Headquarters within
Training on the MMPA, pinniped identification, and the conditions of the IHA is held for staff and contractors assigned to estuary management activities. The training includes equipment operators, safety crew members, and surveyors. In addition, prior to beginning each water surface elevation management event, the biologist monitoring the event participated in the onsite safety meeting to discuss the location(s) of pinnipeds at the Jenner haul-out that day and methods of avoiding and minimizing disturbances to the haul-out as outlined in the IHA.
SCWA is required to submit a report on all activities and marine mammal monitoring results to the Office of Protected Resources, NMFS, and the Southwest Regional Administrator, NMFS, 90 days prior to the expiration of the IHA if a renewal is sought, or within 90 days of the expiration of the permit otherwise. This annual report will also be distributed to California State Parks and Stewards, and would be available to the public on SCWA's Web site. This report will contain the following information:
• The number of seals taken, by species and age class (if possible);
• behavior prior to and during water level management events;
• start and end time of activity;
• estimated distances between source and seals when disturbance occurs;
• weather conditions (
• haul-out reoccupation time of any seals based on post activity monitoring;
• tide levels and estuary water surface elevation; and
• seal census from bi-monthly and nearby haul-out monitoring.
The annual report includes descriptions of monitoring methodology, tabulation of estuary management events, summary of monitoring results, and discussion of problems noted and proposed remedial measures.
SCWA is requesting, and NMFS is proposing, authorization to take harbor seals, California sea lions, and northern elephant seals, by Level B harassment only, incidental to estuary management activities. These activities, involving increased human presence and the use of heavy equipment and support vehicles, are expected to harass pinnipeds present at the haul-out through disturbance only. In addition, monitoring activities prescribed in the BiOp may harass additional animals at the Jenner haul-out and at the three haul-outs located in the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of the number of harbor seals, California sea lions, and northern elephant seals that may be harassed by the proposed activities is based upon the number of potential events associated with Russian River estuary management activities and the average number of individuals of each species that are present during conditions appropriate to the activity. As described previously in this document, monitoring effort at the mouth of the Russian River has shown that the number of seals utilizing the haul-out declines during bar-closed conditions. Tables 9 and 10 detail the total number of estimated takes.
Events associated with lagoon outlet channel management would occur only during the lagoon management period, and are split into two categories: (1) Initial channel implementation, which would likely occur between May and September, and (2) maintenance and monitoring of the outlet channel, which would continue until October 15. In addition, it is possible that the initial outlet channel could close through natural processes, requiring additional channel implementation events. Based on past experience, SCWA estimates that a maximum of three outlet channel implementation events could be required. Outlet channel implementation events would only occur when the bar is closed; therefore, it is appropriate to use data from bar-closed monitoring events in estimating take (Table 4). Construction of the outlet channel is designed to produce a perched outflow, resulting in conditions that more closely resemble bar-closed than bar-open with regard to pinniped haul-out usage. As such, bar-closed data is appropriate for estimating take during all lagoon management period maintenance and monitoring activity. As dates of outlet channel implementation cannot be known in advance, the highest daily average of seals per month—from May—is used in estimating take. For maintenance and monitoring activities associated with the lagoon outlet channel, which would occur on a weekly basis following implementation of the outlet channel, the average number of harbor seals for each month was used.
Artificial breaching activities would also occur during bar-closed conditions; however, data collected specifically during bar-closed conditions exists only for April through November (Table 4). These data may be used for estimating take associated with artificial breaching occurring during those months. For activity occurring from December through March, monitoring data that are not specific to bar conditions may be used for estimating take (Table 3).
For biological and physical habitat monitoring activities in the estuary, it was assumed that pinnipeds may be encountered once per event and flush from a river haul-out. The potential for harassment associated with these events is limited to the three haul-outs located in the estuary. In past experience, SCWA typically sees no more than a single harbor seal at these haul-outs, which consist of scattered logs and rocks that often submerge at high tide.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In determining whether or not authorized incidental take will have a negligible impact on affected species stocks, NMFS considers a number of criteria regarding the impact of the proposed action, including the number, nature, intensity, and duration of Level B harassment take that may occur. Although SCWA's estuary management activities may harass pinnipeds hauled out at the mouth of the Russian River, as well as those hauled out at several locations in the estuary during recurring monitoring activities, impacts are occurring to a small, localized group of animals. No mortality or injury is anticipated, nor will the proposed action result in long-term impacts such as permanent abandonment of the haul-out. Seals will likely become alert or, at most, flush into the water in reaction to the presence of crews and equipment on the beach. However, breaching the sandbar has been shown to increase seal abundance on the beach, with seals quickly re-inhabiting the haul-out following cessation of activity. In addition, the implementation of the lagoon management plan may provide ideal increased availability of prey species (salmonids). No impacts would be expected at the population or stock level.
No pinniped stocks known from the action area are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. Recent data suggests that harbor seal populations have reached carrying capacity; populations of California sea lions and northern elephant seals in California are also considered healthy.
The proposed number of animals taken for each species of pinnipeds can be considered small relative to the population size. There are an estimated 34,233 harbor seals in the California stock, 238,000 California sea lions, and 124,000 northern elephant seals in the California breeding population. Based on extensive monitoring effort specific to the affected haul-out and historical data on the frequency of the specified activity, NMFS is proposing to authorize take, by Level B harassment only, of 2,735 harbor seals, nineteen California sea lions, and fifteen northern elephant seals, representing 8.0, 0.008, and 0.012 percent of the populations, respectively. However, this represents an overestimate of the number of individuals harassed over the duration of the proposed IHA, because a given individual is likely to be harassed multiple times.
The proposed action would not be likely to cause injury or mortality to any harbor seal pup, nor would it impact mother-pup bonding. The peak of pupping season occurs during May, when few management activities are anticipated. However, any management activity that is required during pupping season will be delayed in the event that a pup less than one week old is present on the beach. As described previously in this document, harbor seal pups are precocious, and mother-pup bonding is likely to occur within minutes. Delay of events would further ensure that mother-pup bonding is not interfered with.
Based on the foregoing analysis, behavioral disturbance to pinnipeds at the mouth of the Russian River would be of low intensity and limited duration. To ensure minimal disturbance, SCWA will implement the mitigation measures described previously, which NMFS has preliminarily determined will serve as the means for effecting the least practicable adverse effect on marine mammals stocks or populations and their habitat. NMFS preliminarily finds that SCWA's estuary management activities will result in the incidental take of small numbers of marine mammals, and that the requested number of takes will have no more than
There are no relevant subsistence uses of marine mammals implicated by this action.
There are no ESA-listed marine mammals found in the action area; therefore, no consultation under the ESA is required. As described elsewhere in this document, SCWA and the Corps consulted with NMFS under Section 7 of the ESA regarding the potential effects of their operations and maintenance activities, including SCWA's estuary management program, on ESA-listed salmonids. As a result of this consultation, NMFS issued the Russian River Biological Opinion (NMFS 2008), which prescribes modifications to SCWA's estuary management activities.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to SCWA's estuary management activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and a service from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.
2. The action will result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Accordingly, the following services are added to the Procurement List:
The DoD contracting activity specifically identified its requirement as Contract Cook Support (CCS) and Dining Facility Attendant (DFA) Service in its Performance Work Statement (PWS). The dining facility (DFAC) associated with this service requirement is newly constructed and will be under the control and military management of the 2D Engineer Battalion when it relocates to White Sands Missile Range (WSMR) under a Base Realignment and Closure action. Food service personnel assigned to the battalion will operate and manage the DFAC and will be augmented by contractor-provided dining facility attendants (DFA).
The PWS describes the DFA service tasks as preparation of vegetables, dining room service (prepare, maintain, clean dining areas; clean condiment containers; clean spills and remove soiled dinnerware; clean dining room tables, chairs, booths; clean dining room walls, baseboards, window ledges, doors, doorframes, ceiling fans, pictures, wall art, artificial plants, light fixtures, etc); buss and replace tray carts during meal serving periods; service and maintain patron self-service area; clean and sanitize food service equipment, utensil cleaning, and dishwashing; clean pots, pans, utensils, storage shelves, and racks; facility maintenance and sanitation; and provide trash and garbage service.
Because the 2d Engineer Battalion is a deployable, combat unit, it may be absent from WSMR as its mission dictates. When deployed, the DFAC will be augmented by contractor-provided cooks to replace absent military food service personnel. The Contracting Officer stated that the military will retain management and operational control during deployments as a Government (civil service) contracting officer's representative will assume those duties. At no time will the contractor be responsible for the management and operational control of the DFAC.
On 1/21/2011 (76 FR 3879-3880), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to the Procurement List.
The Committee is proposing to add products to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from a nonprofit agency employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the products to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products are proposed for addition to Procurement List for production by the nonprofit agency listed:
Commodity Futures Trading Commission.
Proposed Interpretive Order.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is proposing this interpretive order to provide interpretive guidance regarding the three statutory disruptive practices set forth in new section 4c(a)(5) of the Commodity Exchange Act (“CEA”) pursuant to section 747 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The Commission requests comment on all aspects of the proposed interpretive order.
Comments must be received on or before May 17, 2011.
Comments, identified by RIN number, may be sent by any of the following methods:
•
•
•
•
Robert Pease, Counsel to the Director of Enforcement, 202-418-5863,
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
Section 747 of the Dodd-Frank Act amends section 4c(a) of the CEA to add a new section entitled “Disruptive Practices.” New CEA section 4c(a)(5) makes it unlawful for any person to engage in any trading, practice, or conduct on or subject to the rules of a registered entitythat—
(A) Violates bids or offers;
(B) Demonstrates intentional or reckless disregard for the orderly execution of transactions during the closing period; or
(C) Is, is of the character of, or is commonly known to the trade as, “spoofing” (bidding or offering with the intent to cancel the bid or offer before execution).
Dodd-Frank Act section 747 also amends section 4c(a) by granting the Commission authority under new CEA section 4c(a)(6) to promulgate such “rules and regulations as, in the judgment of the Commission, are reasonably necessary to prohibit the trading practices” enumerated therein “and any other trading practice that is disruptive of fair and equitable trading.”
The Commission is issuing this proposed interpretive order to provide market participants and the public with guidance on the scope of the statutory prohibitions set forth in section 4c(a)(5). The Commission requests comment on all aspects of this proposed interpretive order, as well as comment on the specific provisions and issues highlighted below.
On November 2, 2010, the Commission issued an advance notice of proposed rulemaking (“ANPR”) asking for public comment on all aspects of Dodd-Frank Act section 747.
In the ANPR, commenters were encouraged to address the nineteen specific questions posed by the Commission in the ANPR.
Throughout the roundtable discussion and comment letters, there was widespread support for the Commission's goal of preventing disruptive trading practices and ensuring fair and equitable markets.
Throughout the Commission roundtable, panelists stated that the provisions of section 747 were vague
Panelists and commenters also sought clarity on whether scienter is required for each of the enumerated practices of section 4c(a)(5), and if so, specificity as to the degree of intent required. Roundtable panelists
In response to these comments, the Commission is proposing this Interpretive Order to provide additional guidance to market participants and the public on the types of trading, conduct, and practices that will constitute violations of section 4c(a)(5). This proposed interpretive order addresses the concerns expressed by the commenters regarding market uncertainty by clarifying how the Commission will interpret and implement the provisions of section 4c(a)(5). By the terms of the statute, 4c(a)(5) applies to trading, practices or conduct on or subject to the rules of a registered entity: a designated contract market or a swap execution facility (“SEF”).
The Commission stresses the important role and unique position of exchanges and self-regulatory organizations to ensure that markets operate in a fair and equitable manner without disruptive trading practices.
During the roundtable discussion, panelists questioned how the concept of violating bids and offers applies across various trading platforms and markets.
The Commission interprets section 4c(a)(5)(A) as prohibiting any person from buying a contract at a price that is
The Commission agrees that section 4c(a)(5)(A) does not apply where a person is unable to violate a bid or offer—
Roundtable panelists expressed the view that additional clarity was needed for the definitions incorporated in section 747(B), in particular, terms such as “closing period.”
New CEA section 4c(a)(5)(B) prohibits any trading, practices, or conduct on or subject to the rules of a registered entity that “demonstrates intentional or reckless disregard for the orderly execution of transactions during the closing period.” In the view of the Commission, Congress's inclusion of a
The Commission interprets the closing period to be generally defined as the period in the contract or trade when the daily settlement price is determined under the rules of that trading facility.
Similar to other intent-based violations of the CEA, the Commission will consider all of the relevant facts and circumstances in determining whether a person violated section 4c(a)(5)(B). The Commission will evaluate the facts and circumstances as of the time the person engaged in the relevant trading, practices, or conduct (
Roundtable panelists commented that there is no commonly-accepted definition of “spoofing” throughout the industry.
New CEA section 4c(a)(5)(C) prohibits any trading, practice, or conduct that “is, is of the character of, or is commonly known to the trade as, “spoofing” (bidding or offering with the intent to cancel the bid or offer before execution).” To violate section 4c(a)(5)(C), a market participant must act with some degree of intent, or scienter, to engage in the “spoofing” trading practices prohibited by section 4c(a)(5)(C). In the view of the Commission, a 4c(a)(5)(C) “spoofing” violation requires that a person intend to cancel a bid or offer before execution; therefore, the Commission believes that reckless trading, conduct, or practices will not result in violations of section 4c(a)(5)(C).
This “spoofing” prohibition covers bid and offer activity on all registered entities, including all regulated futures, options, and swap execution facilities, including all bids and offers in pre-open periods or during other exchange-controlled trading halts. “Spoofing” also includes, but is not limited to: (i) Submitting or cancelling bids or offers to overload the quotation system of a registered entity, (ii) submitting or cancelling bids or offers to delay another person's execution of trades; and (iii) submitting or cancelling multiple bids or offers to create an appearance of false market depth.
As with other intent-based violations, the Commission distinguishes between legitimate trading and “spoofing” by evaluating all of the facts and circumstances of each particular case, including a person's trading practices and patterns. Notably, a section 4c(a)(5)(C) violation does not require a pattern of activity, even a single instance of trading activity can be disruptive of fair and equitable trading.
On this matter, Chairman Gensler and Commissioners Dunn, Chilton and O'Malia voted in the affirmative; Commissioner Sommers voted in the negative.
I support the proposed interpretive order regarding disruptive practices on designated contract markets or swap execution facilities. Congress expressly prohibited three trading practices that it deemed were disruptive of fair and equitable trading. Today's order provides additional guidance to market participants and the public on the trading, practices and conduct that violate these statutory provisions. The order also addresses comments received by the Commission at the December 2nd roundtable and in response to the Advanced Notice of
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U.S. Consumer Product Safety Commission.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the U.S. Consumer Product Safety Commission (“CPSC,” “Commission,” or “we”) has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted April 18, 2011.
Written comments may be faxed to the Office of Information and Regulatory Affairs, OMB,
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
Linda Glatz, Division of Policy and Planning, Office of Information Technology and Technology Services, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814
In the
This notice constitutes the CPSC's refined individual estimates of the information collection burden regarding generic clearance for the collection of qualitative feedback on agency service delivery. In compliance with 44 U.S.C. 3507, we have submitted the following proposed collection of information to OMB for review and clearance.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
We received no comments in response to the 60-day notice published by OMB in the
Below we provide our projected average annual estimates for the next three years:
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.
Wednesday, March 23, 2011, 10 a.m.-12 Noon.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
A live Webcast of the Meeting can be viewed at
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Wednesday, March 23, 2011; 2 p.m.-3 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Defense Acquisition University, DoD.
Event notice.
Mrs. Katrina McFarland, President, Defense Acquisition University (DAU), will host a forum to discuss implementation of Better Buying Power: Guidance for Obtaining Greater Efficiency and Productivity in Defense Spending, outlined in the Dr.
Thursday, April 21, 2011 from 8 a.m.-12:30 p.m.
Defense Acquisition University, Howell Auditorium, Bldg. 226, 9820 Belvoir Rd., Fort Belvoir, VA 22060.
Christen Goulding, Protocol Director, DAU;
National Defense University (NDU), DoD.
Notice of cancellation of an open meeting.
The Department of Defense, National Defense University, announced an open meeting of the National Defense University Board of Visitors on January 10, 2011 (76 FR 1408). The meeting previously scheduled to be held on April 7 & 8, 2011, has been canceled. This meeting will be rescheduled for a later date.
Ms. Dolores Hodge @ (202) 685-0082,Fax (202) 685-7707 or
National Defense University (NDU), DoD.
Notice of open meeting.
The National Defense University, Designated Federal Officer, has scheduled a meeting of the Board of Visitors. The National Defense University Board of Visitors is a Federal Advisory Board. The Board meets twice a year in proceedings that are open to the public.
The meeting will be held on May 24 & 25, 2011 from 11:30 a.m. to 5 p.m. on the 24th and continuing on the 25th from 8 a.m. to 12:30 p.m.
The Board of Visitors meeting will be held at Marshall Hall, Building 62, Room 155, the National Defense University, 300 5th Avenue, SW., Fort McNair, Washington, DC 20319-5066.
Ms. Dolores Hodge @ (202) 685-0082, Fax (202) 685-7707 or
The future agenda will include discussion on Defense transformation, faculty development, facilities, information technology, curriculum development, post 9/11 initiatives as well as other operational issues and areas of interest affecting the day-to-day operations of the National Defense University and its components. The meeting is open to the public; limited space made available for observers will be allocated on a first come, first served basis. Written statements to the committee may be submitted to the committee at any time or in response to a stated planned meeting agenda by FAX or E-MAIL to the point of contact person listed in the preceding paragraph. (Subject Line: Comment/Statement to the NDU BOV).
Department of Defense.
Notice of advisory committee closed meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C. App 2, Section 1), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102-3.150, the Department of Defense announces the following closed meeting notice pertaining to the following federal advisory committee: U.S. Strategic Command Strategic Advisory Group.
April 7, 2011, from 8 a.m. to 5 p.m. and April 8, 2011, from 8 a.m. to 11:30 a.m.
Dougherty Conference Center, Building 432, 906 SAC Boulevard, Offutt AFB, Nebraska 68113.
Mr. Bruce Sudduth, Designated Federal Officer, (402) 294-4102, 901 SAC Blvd, Suite 1F7, Offutt AFB, NE 68113-6030.
For Additional/Supplementary Information Contact: Mr. Floyd March, Joint Staff, (703) 697-0610.
Department of the Air Force, DoD.
Notice to alter a system of records.
The Department of the Air Force is proposing to alter a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The proposed action will be effective on April 18, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
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Mr. Charles J. Shedrick, 703-696-6488, or the Department of the Air Force Privacy Office, Air Force Privacy Act Office, Office of Warfighting Integration and Chief Information officer, ATTN: SAF/XCPPI, 1800 Air Force Pentagon, Washington DC 20330-1800.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 United States Code 552a(r) of the Privacy Act, were submitted on March 8, 2011 to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget pursuant to paragraph 4c of Appendix I to Office of Management and Budget Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996, (February 20, 1996, 61 FR 6427).
Medical Assignment Limitation Record System (August 29, 2003, 68 FR 51998).
Delete entry and replace with “Headquarters Air Force Personnel Center, Medical Service Officer Management Division, Medical Retention Standards Branch, 550 C Street West, Randolph Air Force Base, TX 78150-4727.”
Delete entry and replace with “All active duty Air Force members who develop, as determined by the local Deployment Availability Working Group, a medical condition that may warrant placement on an Assignment Limitation Code (ALC) in Military Personnel Data System (MilPDS). This includes all cases presented to a Medical Evaluation Board or Physical Evaluation Board that were returned to duty and therefore considered for an ALC. An ALC flags the member in MilPDS as medical waiver required for deployments and overseas assignments.”
Delete entry and replace with “Medical Evaluation and Physical Evaluation Board packages, Report of Medical Examination, Report of Medical History, Narrative Summary, Armed Forces Health Longitudinal Technology Application (AHLTA) medical record documentation, Clinical Record Consultation Sheet, Electrocardiographic Record, Pulmonary Function Testing reports, laboratory results, commander letters, and Deployment Availability Working Group summary. Personally identifiable information included in the above records includes name, Social Security Number (SSN), and date of birth.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force; Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement and Separation; and Air Force Instruction 36-2110, Assignments; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “Collect applicable medical information and commander input to determine appropriate medical Assignment Limitation Code (ALC).”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein, may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
This system of records contains individually identifiable health information. The DoD Health Information Privacy Regulation (DoD 6025.18-R) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, applies to most such health information. DoD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice.”
Delete entry and replace with “Maintained in hardcopy file folders and electronic storage media.”
Delete entry and replace with “Electronic and hardcopy files are retrieved by last name and last four digits of Social Security Number (SSN).”
Delete entry and replace with “Records are accessed by person(s) responsible for servicing the record system in performance of their official duties. Records are stored in locked rooms and cabinets and electronic records are accessible by use of the Common Access Card (CAC) and site specific login.”
Delete entry and replace with “Retained in office files for two years or when no longer needed for reference, then destroyed by tearing into pieces, shredding, pulping, macerating, burning, or deleting.”
Delete entry and replace with “Headquarters Air Force Personnel Center, Medical Service Officer Utilization Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information on themselves should address written inquiries to Headquarters Air Force Personnel Center, Medical Service Officer Management Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details, which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “Individuals seeking to access records about themselves contained in this system should address written requests to Headquarters Air Force Personnel Center, Medical Service Officer Utilization Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United State of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.”
Delete entry and replace with “The Air Force rules for accessing records and for contesting contents and appealing initial agency determinations are published in 32 CFR part 806b, Air Force Instruction 33-332, Air Force Privacy Program and may be obtained from the system manager.”
Medical Assignment Limitation Record System.
Headquarters Air Force Personnel Center, Medical Service Officer Management Division, Medical Retention Standards Branch, 550 C Street West, Randolph Air Force Base, TX 78150-4727.
All active duty Air Force members who develop, as determined by the local Deployment Availability Working Group, a medical condition that may warrant placement on an Assignment Limitation Code (ALC) in Military Personnel Data System (MilPDS). This includes all cases presented to a Medical Evaluation Board or Physical Evaluation Board that were returned to duty and therefore considered for an ALC. An ALC flags the member in MilPDS as medical waiver required for deployments and overseas assignments.
Medical Evaluation and Physical Evaluation Board packages, Report of Medical Examination, Report of Medical History, Narrative Summary, Armed Forces Health Longitudinal Technology Application (AHLTA) medical record documentation, Clinical Record Consultation Sheet, Electrocardiographic Record, Pulmonary Function Testing reports, laboratory results, commander letters, Deployment Availability Working Group summary. Personally identifiable information included in the above records includes name, Social Security Number (SSN), and date of birth.
10 U.S.C. 8013, Secretary of the Air Force; Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement and Separation; and Air Force Instruction 36-2110, Assignments and E.O. 9397 (SSN), as amended.
Collect applicable medical information and commander input to determine appropriate medical Assignment Limitation Code (ALC).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein, may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' published at the beginning of the Air
This system of records contains individually identifiable health information. The DoD Health Information Privacy Regulation (DoD 6025.18-R) issued pursuant to the Health Insurance Portability and Accountability Act of 1996, applies to most such health information. DoD 6025.18-R may place additional procedural requirements on the uses and disclosures of such information beyond those found in the Privacy Act of 1974 or mentioned in this system of records notice.
Maintained in hardcopy file folders and electronic storage media.
Electronic and hardcopy files are retrieved by last name and last four digits of Social Security Number (SSN).
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties. Records are stored in locked rooms and cabinets and electronic records are accessible by use of the Common Access Card (CAC) and site specific login.
Retained in office files for two years or when no longer needed for reference, then destroyed by tearing into pieces, shredding, pulping, macerating, burning, or deleting.
Headquarters Air Force Personnel Center, Medical Service Officer Utilization Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.
Individuals seeking to determine whether this system of records contains information on themselves should address written inquiries to Headquarters Air Force Personnel Center, Medical Service Officer Management Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details, which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
Individuals seeking to access records about themselves contained in this system should address written requests to Headquarters Air Force Personnel Center, Medical Service Officer Utilization Division, Chief, Medical Retention Standards Branch, Randolph Air Force Base, TX 78150-4727.
For verification purposes, individual should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
The Air Force rules for accessing records and for contesting contents and appealing initial agency determinations are published in 32 CFR part 806b, Air Force Instruction 33-332, Air Force Privacy Program and may be obtained from the system manager.
Information obtained from military and civilian medical institutions and correspondence as related to board proceedings.
None.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of Availability.
Pursuant to the National Environmental Policy Act (NEPA), the U.S. Army Corps of Engineers, Honolulu District has prepared a Draft Environmental Impact Statement (DEIS) to inform a decision on an application from Honolulu Seawater Air Conditioning, LLC to construct a seawater air conditioning system (SWAC) at Kaka`ako on the south shore of O`ahu. The applicant's overall project purpose is to provide a renewable-energy air conditioning system for downtown Honolulu buildings. In order to obtain deep, cold seawater to chill fresh water that would circulate through the SWAC system and return it to the ocean after it has passed through onshore heat exchangers, the applicant proposes to construct intake and return pipelines in adjacent coastal waters. The proposed pipeline staging and installation sites are located within the navigable waters of the United States and the proposed activity is subject to the jurisdiction of the U.S. Army Corps of Engineers. Proposed onshore improvements and upland infrastructure are briefly described to provide an overview of the project, but their impacts to terrestrial environmental resources are not a primary focus of the document.
Of primary federal concern are potential effects of proposed in-water construction, including the discharge of fill material at the offshore pipeline receiving pit, and operation of the system on the quality of the human environment. The DEIS considers alternative cooling technologies, cooling station designs and locations, pipeline installation methods, diffuser location and depth, and intake design. It evaluates two alternatives involving different pipeline alignments. Identified environmental resources potentially affected include marine biota and habitat; water quality; navigation and other human use; noise; and air quality.
All written comments must be postmarked or electronically transmitted on or before May 2, 2011.
Comments may be submitted in writing to: Mr. Peter C.
Peter C. Galloway at (808) 438-8416, or via e-mail at
To obtain, utilize, and return deep, cold seawater, Honolulu Seawater Air Conditioning, LLC (applicant) proposes to construct a 63-inch diameter seawater intake pipe extending offshore approximately four miles, to a depth of 1,600 to 1,800 feet; a 54-inch diameter seawater return pipe extending offshore approximately 3,500 feet, to a depth of 150 feet; an on-shore cooling station containing pumps, heat exchangers and auxiliary chillers; and a network of upland distribution pipes to circulate cooled fresh water from the station to customer buildings in the downtown area. In addition, the applicant proposes to use an area along the western shore of Sand Island and the adjoining channel area of Ke`ehi Lagoon for pipeline assembly and staging prior to towing and installing the lines at the project site. Individual pipe segments would be heat-fused to form longer segments and then flange-bolted to form a continuous line.
At the project site, the pipelines would be buried from behind the shore to some depth offshore in order to reduce negative impacts to the benthic environment and to protect the pipes from high waves and storm surge in the nearshore zone. An offshore receiving pit would be excavated and backfilled at the pipeline “breakout” location. The offshore portions of the intake and return pipelines, which would be installed adjacent to each other, would be supported on pre-cast concrete supports which would be placed on the pipelines prior to their filling and sinking at the project site. The seaward end of the intake line would be unscreened and would terminate in a right-angle elbow, such that water would be drawn down into the pipe from about 14 feet above the sea bottom. The seaward end of the return pipeline would terminate in a diffuser section extending from depths of 120 to 150 feet.
The proposed project would involve work or structures in or affecting the course, condition, location or capacity of navigable waters of the United States. It would also involve the discharge of dredged or fill material into waters of the United States. Federal authorization of the project will therefore require issuance of a Department of the Army (DA) permit pursuant to both Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act (33 U.S.C. 1344).
USACE invites participation in the EIS process of federal, state and local agencies; Hawaiian organizations, individuals and practitioners; and other interested private organizations and parties.
An electronic version of the DEIS may be viewed by visiting the USACE Honolulu District Web site at
Grants awarded under this program may be used—
(1) For pre-service professional development programs that will assist local schools and institutions of higher education (IHEs) to upgrade the qualifications and skills of educational personnel who are not certified or licensed, especially educational paraprofessionals;
(2) For the development of program curricula appropriate to the needs of the consortia participants involved; and
(3) In conjunction with other Federal need-based student financial assistance programs, for financial assistance, and costs related to tuition, fees, and books for enrolling in courses required to complete the degree involved, to meet certification or licensing requirements for teachers who work in language instruction educational programs or serve ELs.
We will award competitive preference priority points for Competitive Preference Priorities 2 and 3 only to applications that score 80 or above on the selection criteria. We will award competitive preference priority points under Competitive Preference Priority 1 to any application that meets that priority.
These priorities are:
Under this priority, the Secretary gives special consideration to novice applicants. Under 34 CFR 75.225(a), a novice applicant means any applicant for a grant from the Department of Education that—
(1) Has never received a grant or subgrant under the program from which it seeks funding;
(2) Has never been a member of a group application, submitted in accordance with 34 CFR 75.127-75.129, that received a grant under the program from which it seeks funding; and
(3) Has not had an active discretionary grant from the Federal Government in the five years before the deadline date for applications under the program.
For the purposes of this requirement, a grant is active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds. In the case of a group application submitted in accordance with 34 CFR 75.127-75.129, a group applicant is considered a novice applicant if the group includes only parties that meet the requirements listed above.
Projects that are designed to collect (or obtain), analyze, and use high-quality and timely data, including data on program participant outcomes, in accordance with privacy requirements (as defined in this notice), in the following priority area:
Improving instructional practices, policies, and student outcomes in elementary or secondary schools.
Projects that are designed to address the following priority area:
Increasing the opportunities for high-quality preparation of, or professional development for, teachers or other educators of STEM subjects.
These priorities are:
Projects that are designed to address the following priority area:
Accelerating learning and helping to improve high school graduation rates and college enrollment rates for students in rural local educational agencies.
Projects designed to improve a teacher education program at an IHE in order to better prepare all participants in a teacher education program to provide effective instruction to ELs. In such projects, IHEs would collaborate with local educational agencies on activities such as:
(1) Professional development to improve the ability of teacher preparation faculty and content faculty at IHEs in preparing prospective teachers to teach ELs; and
(2) The development of teacher education curricula that—
(a) Are aligned with State content standards in academic subjects and State English language proficiency standards; and
(b) Prepare all teacher candidates in an IHE to provide instruction that accelerates ELs' acquisition of language, literacy, and content knowledge.
The Department is not bound by any estimates in this notice.
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Yvonne Mathieu, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C138, Washington, DC 20202-6510. Telephone: (202) 401-1461 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
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Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit the application narrative to the equivalent of no more than 35 pages using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the two-page abstract. However, the page limit does apply to all of the application narrative section in Part III.
We will reject your application if you exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
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Applications Available: March 18, 2011.
Deadline for Transmittal of Applications: May 2, 2011.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the persons listed under
Deadline for Intergovernmental Review: July 5, 2011.
4.
5.
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (
7.
Applications for grants under this program must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.
a.
Applications for grants under the NPD program, CFDA number 84.195N, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. You may not e-mail an electronic copy of a grant application to us.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the National Professional Development program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Ana Maria Garcia, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C147, Washington, DC 20202. FAX: (202) 260-1292.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.195N), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.195N), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this grant notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The notes that we have included after each criterion are guidance to assist applicants in understanding the criterion as they prepare their applications, and are not required by statute or regulation.
(a)
The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable. (35 points)
(2) The extent to which the design of the proposed project reflects up-to-date knowledge from research and effective practice. (5 points)
In responding to this criterion, the applicant may wish to describe a plan to carry out activities under the grant as part of its required consortium with one or more LEAs or SEAs, including how each member will be involved in the planning, development, and implementation of the project; the resources to be provided by each partner(s); the specific activities that the partner(s) will contribute to the grant during each year of the project; and the identity of each member of the consortium.
(b)
The Secretary considers the quality of the personnel who will carry out the proposed project. In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. In addition, the Secretary considers the following factors:
(1) The qualifications, including relevant training and experience, of the project director or principal investigator. (5 points)
(2) The qualifications, including relevant training and experience, of key project personnel. (5 points)
The applicant may address the factors under this criterion by including position descriptions (not resumes) for the project director and other key personnel, such as the evaluator of the program.
(c)
The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(1) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (15 points)
(2) The extent to which the time commitment of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project. (5 points)
In responding to this criterion, the applicant may wish to include a narrative that describes how and when, in each budget period of the project, the applicant plans to meet each project objective.
The applicant may also want to consider addressing the factors under this criterion by including a clear, well-thought-out management plan that includes annual timelines, key project milestones, a schedule of activities, the persons responsible for each activity, and the percentage of time the project director, partner(s) staff, consultants, and other key personnel will spend in the project.
(d)
(1) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project. (10 points)
(2) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible. (10 points)
(3) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes. (10 points)
Applicants may wish to consider addressing the factors under this criterion by describing how the evaluation plan is aligned with the goals, objectives and activities described under the Quality of Project Design criterion. In addition, each applicant may wish to explain how each objective will be evaluated and when the applicant will collect, analyze, and report quantitative and qualitative data on project measures and Government Performance and Results Act (GPRA) performance measures.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
Measure 1.4: The percentage of paraprofessional program completers who meet State and/or local qualifications for paraprofessionals working with EL students.
Measure 1.5: The percentage of in-service teacher completers who complete State and/or local certification, licensure, or endorsement requirements in EL instruction as a result of the program.
Measure 1.6: The percentage of in-service teacher completers who are providing instructional services to EL students.
6.
In making a continuation award, the Secretary may consider, under 34 CFR 75.253, the extent to which a grantee has made “substantial progress toward meeting the objectives in its approved application.” This consideration includes the review of a grantee's progress in meeting the targets and projected outcomes in its approved application, and whether the grantee has expended funds in a manner that is consistent with its approved application and budget. In making a continuation grant, the Secretary also requires various assurances and, in making a continuation award, considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
The official version of this document is the document published in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. This application is not ready for environmental analysis at this time.
k.
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m. You may also register online at
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o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed on or before 5 p.m. Eastern time on the specified comment date. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Description: PacifiCorp submits tariff filing per 35.13(a)(2)(iii): Alpental Blue Mountain E&P Agreement to be effective 2/10/2011.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
On February 22, 2011, the Federal Energy Regulatory Commission (Commission) announced that a Technical Conference on Priority Rights to New Participant-Funded Transmission will be held on Tuesday, March 15, 2011, from 9:30 a.m. to 3:15 p.m. (EDT). The staff-led conference will be held in the Commission Meeting Room at the Commission's headquarters at 888 First Street, NE., Washington, DC 20426. The conference will be open for the public to attend and advance registration is not required. Members of the Commission may attend the conference. On March 7, 2011, the Commission issued a supplemental notice with an agenda for the conference.
Discussions at the conference may address matters at issue in the above-referenced individual proceedings that are either pending or within their rehearing period. The March 7 Notice omitted two proceedings before the Commission that are either pending or within their rehearing period. This supplemental notice reflects the addition of the following proceedings:
Hudson Transmission Partners, LLC, Docket No. ER11-3017-000; and Peetz Logan Interconnect, LLC, Docket No. ER11-2970-000.
A free webcast of the technical conference will be available. Anyone with internet access who desires to listen to this event can do so by navigating to the Calendar of Events on the Commission's Web site and locating this event in the Calendar. The event will contain a link to its webcast. The Capitol Connection provides technical support for webcasts and will offer the option of listening to the conference via phone-bridge for a fee. If you have any questions about the webcast, visit
This conference will also be transcribed. Transcripts will be available immediately, for a fee, from Ace Reporting Company (202-347-3700 or 800-336-6646).
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
For further information please contact Becky Robinson at (202) 502-8868 or
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before April 18, 2011.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2010-0374, to (1) EPA online using
Learia A. Williams, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 2, 2010 (75 FR 30813), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2010-0374, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities must submit a one-time-only report of any physical or operational changes, initial performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports, at a minimum, are required semiannually.
The increase in cost to Respondents and the Agency is due to updating of the labor rates to reflect the most recent available estimates. There are no changes to the capital/startup or operation and maintenance costs.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Industrial Street Drum Site in Dearborn, Michigan with the following settling party: Eugenio Painting Company. The settlement requires the settling party to pay $20,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling party pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all such comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate.
Written comments on the proposed settlement must be received by EPA's designee on or before close of business on April 18, 2011 to be assured of consideration.
Comments should reference the Industrial Street Drum Site and should be addressed to Robert H. Smith, U.S. EPA, 77 W. Jackson Blvd (C-14J), Chicago, IL 60604-3590.
Robert H. Smith, U.S. EPA, 77 W. Jackson Blvd (C-14J), Chicago, IL 60604-3590, 312-886-0765. A copy of the proposed settlement and the Agency's response to any comments received may be obtained from the above contact as well. Additional background information relating to the settlement is available for review at the EPA's Region 5 Office of Regional Counsel.
42 U.S.C. 9601-9675.
In accordance with Section 309(a) of the Clean Air Act, EPA is required to make its comments on EISs issued by other Federal agencies public. Historically, EPA met this mandate by publishing weekly notices of availability of EPA comments, which includes a brief summary of EPA's comment letters, in the
Environmental Protection Agency.
Notice of public availability of FY 2010 Service Contract inventories.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117), Environmental Protection Agency is publishing this notice to advise the public of the availability of the FY 2010 Service Contract inventory. This inventory provides information on service contract actions over $25,000 that were made in FY 2010. The information is organized by function to show how contracted resources are distributed throughout the agency. The inventory has been developed in accordance with guidance issued on November 5, 2010 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at
Questions regarding the service contract inventory should be directed to Linear Cherry in the Office of Acquisition Management, Headquarters Procurement Operations Division (3803R), Business Analysis Support Staff, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 202-564-4403; e-mail address:
1. EPA has established a docket for this action under Docket ID No. EPA-HQ-OARM-2011-0189. Publicly available docket materials are available either electronically through
2.
Environmental Protection Agency.
Notice of settlement.
Under Section 122(h)(1) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement for reimbursement of past response costs concerning the National Starch and Chemical Company Site located in Mobile, Mobile County, Alabama for publication.
The Agency will consider public comments on the settlement until April 18, 2011. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from Ms. Paula V. Painter. Submit your comments, identified by Docket ID No. EPA-RO4-SFUND-2011-0278 or Site name National Starch and Chemical Company Superfund Site by one of the following methods:
•
•
• E-mail:
Paula V. Painter at 404/562-8887.
The Advisory Committee was established by Public Law 98-181, November 30, 1983, to advise the Export-Import Bank on its programs and to provide comments for inclusion in the reports of the Export-Import Bank of the United States to Congress.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Board of Governors of the Federal Reserve System.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected; and
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments must be submitted on or before May 17, 2011.
You may submit comments, identified by
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•
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All public comments are available from the Board's Web site at
Additionally, commenters should send a copy of their comments to the OMB Desk Officer by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503 or by fax to 202-395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Cynthia Ayouch, Acting Federal Reserve Board Clearance Officer (202-452-3829), Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551. Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 1, 2011.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Board of Governors of the Federal Reserve System.
10:30 a.m., Wednesday, March 16, 2011.
The business of the Board requires that this meeting be held with less than one week's advance notice to the public, and no earlier announcement of the meeting was practicable.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, NW., Washington, DC 20551.
Closed.
1. Administrative matter.
Michelle Smith, Director, or Dave Skidmore, Assistant to the Board, Office of Board Members at 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay, Contact Representative, or Renee Chapman, Contact Representative,Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By Direction of the Commission.
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 April 28-29, 2011. Tentatively the meeting will be from 8 a.m. to 4 p.m. ET on April 28 and 8 a.m. to 12 p.m. ET on April 29. The agenda is subject to change as priorities dictate.
Washington, DC Metro Area. The venue and call-in details will be posted as they become available on the NBSB's April meeting Web page 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 and/or the Assistant Secretary for Preparedness and Response on other matters related to public health emergency preparedness and response.
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meetings.
This notice announces forthcoming subcommittee meetings of a federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meetings will be open to the public via dial-in access only.
If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meeting.
This notice announces a forthcoming meeting of a public advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meeting will be open to the public.
Persons attending ONC's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
ONC welcomes the attendance of the public at its advisory committee meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meeting.
This notice announces a forthcoming meeting of a public advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meeting will be open to the public.
Persons attending ONC's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
ONC welcomes the attendance of the public at its advisory committee meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Judy Sparrow at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App. 2).
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
HHS gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees from Mathieson Chemical Co., Pasadena, Texas, to be included in the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000. The initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health (NIOSH), 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 877-222-7570. Information requests can also be submitted by e-mail to
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 76, FR 1167, dated January 7, 2011) is amended to reflect the reorganization of the National Center for Emerging and Zoonotic Infectious Diseases, Office of Infectious Diseases, Centers for Disease Control and Prevention.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in their entirety the titles and functional statements for the Division of Healthcare Quality Promotion (CVLD) and insert the following:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Muscular Dystrophy Coordinating Committee (MDCC).
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting.
An agenda will be posted prior to the meeting on the MDCC Web site:
Any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Notice is hereby given that the National Institutes of Health (NIH), Department of Health and Human Services, will hold a scientific workshop.
This workshop is open to the public. Please note that attendance is limited. We encourage registration for those attending in person (
Individuals with disabilities who need reasonable accommodation should indicate their needs on registration or contact Infinity Conference Group by telephone at 703-925-9455, ext. 0, or e-mail at
For more information including an agenda, registration, and visitor information, please visit the workshop Web site:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended(5 U.S.C. App), notice is hereby given of a joint meeting of the National AdvisoryCouncil on Alcohol Abuse and Alcoholism and the National Advisory Council on DrugAbuse.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify one of the IC Contact Persons listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to a Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information will also available on the Institute's/Center's home pages:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), Interior.
Notice of extension of an information collection (1010-0185).
To comply with the Paperwork Reduction Act of 1995 (PRA), we are notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR 250, “Increased Safety Measures for Oil and Gas Drilling, Well-Completion, and Well-Workover Operations,” and related documents. This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
Submit written comments by April 18, 2011.
Submit comments by either fax (202) 395-5806 or e-mail (
• Electronically: go to
• E-mail
Cheryl Blundon, Regulations and Standards Branch, (703) 787-1607. To see a copy of the entire ICR submitted to OMB, go to
The interim rule (75 FR 63346), effective October 14, 2010, implemented certain safety measures outlined in the Secretary of the Interior's report entitled, “Increased Safety Measures for Energy Development on the Outer Continental Shelf” (Safety Measures Report), dated May 27, 2010. The President requested that the Department of the Interior develop this report as a result of the Deepwater Horizon incident on April 20, 2010. On June 2, 2010, the Secretary of the Interior directed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) to adopt the recommendations contained in the Safety Measures Report and to implement them as soon as possible.
This information collection (IC) request concerns the regulations that amend certain drilling requirements. This includes requirements related to subsea and surface blowout preventers (BOPs), well casing and cementing, secondary intervention, unplanned disconnects, record keeping, well completion, and well plugging. It also covers the related Notices to Lessees and Operators (NTLs) that the BOEMRE issues to clarify and provide additional guidance on some aspects of the regulations.
Regulations implementing these responsibilities are under multiple subparts in 30 CFR part 250. Responses are mandatory and are submitted on occasion. No questions of a sensitive nature are asked. BOEMRE protects information considered proprietary according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection,” and 30 CFR part 252, “OCS Oil and Gas Information Program.”
BOEMRE collects the information to address various recommendations from the Secretary's report that were incorporated into the regulations. These regulatory requirements: ensure sufficient redundancy in the BOPs; promote the integrity of the well and enhance well control; and facilitate a culture of safety through operational and personnel management. They also improve the safety of offshore oil and gas drilling operations in Federal waters and promote human safety and environmental protection while requiring OCS lessees and operators to follow best industry practices for well control. This collection references Applications for Permit to Drill and Modify (Forms MMS-123 and MMS-124) but does not change the forms.
To comply with the public consultation process, on October 14, 2010, we published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a comprehensive conservation plan (CCP) and environmental assessment (EA) for Sunkhaze Meadows National Wildlife Refuge (NWR) and Carlton Pond Waterfowl Production Area (WPA). We provide this notice in compliance with our CCP policy to advise other Federal and State agencies, Tribes, and the public of our intentions, and to obtain suggestions and information on the scope of issues to consider in the planning process.
To ensure consideration, please send your written comments by April 30, 2011. We will announce opportunities for public input in local news media throughout the CCP process.
Send your comments or requests for more information by any one of the following methods.
Beth Goettel, 207-594-0600 (phone);
With this notice, we initiate our process for developing a CCP for Sunkhaze Meadows NWR, located in Kennebec, Penobscot, and Waldo Counties, ME, and Carlton Pond WPA, located in Waldo County, ME. This notice complies with our CCP policy to: (1) Advise other Federal and State agencies, Tribes, and the public of our intention to conduct detailed planning on this refuge, and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System (NWRS), consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
Each unit of the NWRS was established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the NWRS mission, and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals and objectives that will ensure the best possible approach to wildlife, plant, and habitat conservation, while providing for wildlife-dependent recreation opportunities that are compatible with each refuge's establishing purposes and the mission of the NWRS.
Our CCP process provides participation opportunities for Tribal, State, and local governments; agencies; organizations; and the public. At this time we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of Sunkhaze Meadows NWR and Carlton Pond WPA.
We will conduct the environmental review of this project and develop an EA in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
Sunkhaze Meadows NWR is comprised of three units: The Sunkhaze Meadows Unit, the Benton Unit, and the Sandy Stream Unit. The Sunkhaze Meadows Unit is the largest of the three, at 11,485 acres. It is located in the Town of Milford, Penobscot County, ME, approximately 14 miles north of Bangor. The Benton Unit is a 334-acre former dairy farm in the Town of Benton in Kennebec County. The Sandy Stream Unit is a 58-acre parcel in the Town of Unity in Waldo County.
The refuge was established in 1988 to ensure the ecological integrity of the Sunkhaze Meadows peat bog and the continued availability of its wetland, stream, forest, and wildlife resources to the citizens of the United States. The purpose of acquisition, under the authority of the Fish and Wildlife Act of 1956 was “for the development, advancement, management, conservation, and protection of fish and wildlife resources” and “for the benefit of the United States Fish and Wildlife Service, in performing its activities and services.” The Land and Water Conservation Fund was the source of funding for the purchase.
The Sunkhaze Meadows Unit protects the second-largest peatland in Maine. Sunkhaze Stream bisects this unit along a northeast-to-southwest orientation and, with its six tributaries, creates a diversity of wetland communities. The bog and stream wetlands, along with the adjacent uplands and associated transition zones, provide important habitat for many wildlife species. The Benton Unit is comprised of grassland, young mixed softwood-hardwood forest, and small wetland habitats. A variety of landbird species of conservation concern are known to breed there, including American woodcock, red-winged blackbird, and bobolink. The Sandy Stream Unit is mainly comprised of upland shrub, abandoned fields, and floodplain forest. The tidewater mucket and yellow lampmussel, two mussel species listed as threatened by the State of Maine, have been observed at the Sandy Stream Division. Combined, the three units provide habitat for at least three plants, seven birds, two mollusks, and three invertebrates listed as endangered or threatened by the State of Maine.
Carlton Pond WPA is a 1,055-acre artificial impoundment located in the town of Troy in Waldo County. The area was acquired by the Service in 1966 to protect the waterfowl and other wildlife associated with this area in central Maine. Carlton Pond WPA has historically provided good nesting habitat for waterfowl and other birds, and is one of the few areas in the State that provides nesting habitat for the black tern, which is State-listed as endangered. Many bird species that use Carlton Pond have been listed by the Partners-in-Flight organization as species that are declining. Slender blue flag iris, a plant species listed as threatened by the State of Maine, has also been observed at Carlton Pond.
We have identified preliminary issues, concerns, and opportunities that we may address in the CCP. We have briefly summarized these issues below. During public scoping, we may identify additional issues.
(1) Ecoregional or ecosystem-wide issues, such as climate change, regional land conservation, and protection of water quality throughout the Penobscot River watershed;
(2) Biological program issues, such as habitat and species management needs, protection, restoration, monitoring, inventories, and research;
(3) Public use program issues, such as the breadth and quality of programs, public access, user conflicts, and use impacts on natural resources;
(4) Infrastructure and staffing issues, such as appropriateness of facilities, safety, accessibility, and additional staffing needs;
(5) Community relations and outreach issues and opportunities, such as increasing local awareness of the refuge and NWRS;
(6) Coordination and communication issues and opportunities with Federal, State, and Tribal Governments and with nongovernmental conservation partners; and
(7) Potential for both wilderness and wild and scenic rivers designations on refuge lands.
We will give the public an opportunity to provide input at one or more public meetings. You can obtain the schedule from the planning team leader or refuge manager (
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.
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. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. The ESA laws require that we invite public comment before issuing these permits.
We must receive comments or requests for documents on or before April 18, 2011.
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
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 (
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 renewal of a permit to import captive-bred/captive-hatched and wild live specimens, captive-bred/wild-collected viable eggs, biological samples from captive-bred/wild specimens, and salvaged materials from captive-bred/wild specimens of whooping cranes (
The applicant requests a permit to re-import two captive born female Asian elephants (
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Rock Well Petroleum (US) Inc. for oil and gas lease WYW160429 for land in Natrona County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16-
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) to authorize the granting of Rights-of-Way (ROW) for the construction of the One Nevada Transmission Line (ON Line) Project. Lands described in the ROW authorizations are located within the BLM Ely District Office's management area in White Pine, Nye, and Lincoln counties, Nevada; and the BLM Southern Nevada District in Clark County, Nevada. The Ely District Office was designated the project lead by the BLM Nevada State Director. The Ely District Manager has signed the ROD, which constitutes the final decision of the BLM. The appeal period for this decision will end 30 days after publication of this notice in accordance with 43 CFR 4.411(a).
Printed copies of the ROD or electronic files on compact disk are available upon request from the Field Manager, Egan Field Office, Bureau of
A limited number of copies of the document will be available at the following BLM offices:
Doris Metcalf, telephone: (775) 289-1852, or e-mail:
Printed copies of the ROD are available for public inspection at the following locations:
The main issues addressed in the Final EIS were visual resources, biological resources, lands with wilderness characteristics, and socioeconomic effects. Three alternatives were analyzed in the Final EIS: (1) The Proposed Action, in which the power line would be located largely within West-Wide Energy Corridors; (2) an alternative alignment within the corridors; and (3) no Action, which would be to not authorize the ROW.
After careful consideration of many factors, including the need to provide electricity to the Western United States and strengthening and stabilizing the economies of White Pine, Nye, Lincoln, and Clark Counties, and balancing those factors with the need to protect air, visual and biological resources, the BLM has selected the agency preferred alternative. The BLM's preferred alternative will approve all of the facilities described in the Proposed Action, including the transmission-line route, except the R-SS-Site B sub-alternative, including the access road and Falcon-Gondor loop-ins will replace the Robinson Summit Substation components. Various site-specific applicant-committed mitigation measures will be implemented at the development stage to protect other resources and uses.
Comments on the ON Line Draft Supplemental EIS received from the public, cooperating agencies and internal BLM reviewers were incorporated into the Final EIS. The comments resulted in corrections, clarifying text, and the addition of new text used in the analysis of impacts. The ON Line Final EIS addresses impacts of the power line on private lands and those administered by the BLM.
This decision is subject to appeal to the Interior Board of Land Appeals (IBLA) as provided in 43 CFR part 4, within 30 days from the date of publication of this Notice of Availability in the
The ROD for this project addresses only BLM's decisions for public lands and resources administered by BLM.
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States hereby publishes below the comment received on the proposed Final Judgment in
Copies of the comments and the response are available for inspection at the Department of Justice Antitrust Division, 450 Fifth Street, NW., Suite 1010, Washington, DC 20530 (
Pursuant to the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (“APPA” or “Tunney Act”), the United States hereby responds to the public comment received regarding the proposed Final Judgment in this case. After careful consideration of the comment submitted, the United States continues to believe that the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violations alleged in the Complaint. The United States will move the Court for entry of the proposed Final Judgment after the public comment and this response have been published in the
The United States filed a civil antitrust complaint on November 29, 2010, seeking to enjoin GrafTech International Ltd.'s (“GrafTech”) proposed acquisition of Seadrift Coke L.P. (“Seadrift”). The Complaint alleged that the acquisition likely would substantially lessen competition in the worldwide sale of petroleum needle coke used to manufacture graphite electrodes, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. That loss of competition likely would result in higher prices, reduced output and less favorable terms of sale in the global petroleum needle coke market.
Simultaneously with the filing of the Complaint, the United States filed a proposed Final Judgment, which is designed to remedy the expected anticompetitive effects of the acquisition, and a Stipulation signed by the plaintiffs and the defendants, consenting to the entry of the proposed Final Judgment after compliance with the requirements of the Tunney Act, 15 U.S.C. 16. Pursuant to those
On April 1, 2010, Defendants GrafTech and Seadrift entered into an Agreement and Plan of Merger, pursuant to which GrafTech agreed to acquire the 81.1 percent of Seadrift stock it does not already own for about $308.1 million. Immediately following the announcement of the merger, the United States Department of Justice (“Department”) opened an investigation into the likely competitive effects of the transaction that spanned more than seven months. As part of this detailed investigation, the Department issued Second Requests to the merging parties and several Civil Investigative Demands (“CIDs”) to third parties. The Department considered more than a million documents submitted by the merging parties in response the Second Requests and by third parties in response to CIDs. The Department also took oral testimony from eight executives from the merging parties, and conducted over 100 interviews with customers, competitors and other market participants. The investigative staff carefully analyzed the information provided and thoroughly considered all of the issues presented. The Department considered the potential competitive effects of the transaction on the production and sale of petroleum needle coke used to manufacture graphite electrodes, and concluded that the merger likely would result in higher prices, reduced output and less favorable terms of sale in the global petroleum needle coke market.
As part of its investigation, the Department considered the potential competitive effects of the merger on the markets for numerous products and services and on a variety of customer groups. The Department concluded, as explained more fully in the Complaint and CIS, the acquisition of Seadrift by GrafTech could substantially lessen competition in the international petroleum needle coke market. Seadrift is a producer of petroleum needle coke, a product purchased by GrafTech and its competitors to make graphite electrodes which are, in turn, sold to steel producers to melt scrap in electric arc furnaces. Petroleum needle coke is a key input in large-diameter (18- to 32-inch) electrodes, in particular, because they are often used in high intensity applications, where petroleum needle coke's needle-like structure, low coefficient of thermal expansion, and low impurity rate are critical to efficient conduction of strong current without costly shutdowns to replace broken or exhausted graphite electrodes. Petroleum needle coke is available from four producers: ConocoPhillips Company (“Conoco”), Seadrift and two other competitors located in Japan. Sales typically are negotiated annually, with price terms and volume targets memorialized in formal contracts.
At the time of the proposed merger, GrafTech received a substantial portion of its petroleum needle coke supply from Conoco, pursuant to a multi-year agreement (“Supply Agreement”), which also included a provision that either GrafTech or Conoco could “audit” the books and records of the other. On September 27, 2010, in response to the proposed merger, Conoco activated the “termination clause” of that agreement, which effectively locked in volume targets and imposed most-favored-nation (“MFN”) pricing for three years, while leaving the audit right intact. By operation of the merger, the audit clause would extend to Seadrift the information provided to GrafTech from Conoco. Should the audit clause be used in conjunction with the MFN, for example, to verify that GrafTech was, in fact, receiving the lowest price, Seadrift potentially would have access to its largest competitor's production and pricing to all other customers. By facilitating the exchange of customer-specific, real-time, competitor pricing information, the merger was likely to facilitate coordination.
Therefore, the Department concluded, as a result of its investigation, that GrafTech's acquisition of Seadrift likely would substantially lessen competition in the development, production and sale of petroleum needle coke in the United States, leading to higher prices, reduced output and less favorable terms of sale in the worldwide petroleum needle coke market, in violation of Section 7 of the Clayton Act. The proposed Final Judgment is designed to address the threat of information exchange created by the merger, by removing the opportunity and means for Seadrift and Conoco to engage in anticompetitive activity under cover of the Supply Agreement, and possibly future supply arrangements.
The proposed Final Judgment contains several layers of prohibited and required conduct to eliminate the anticompetitive effects that otherwise would result from GrafTech's acquisition of Seadrift. First, the terms of the proposed Final Judgment require GrafTech and Seadrift immediately to abrogate, amend or otherwise alter the current petroleum needle coke Supply Agreement between GrafTech and Conoco to remove the terms related to the ongoing audit rights, sharing of non-public or proprietary information, and MFN pricing. Had these clauses persisted, they might have allowed GrafTech and Seadrift access to Conoco's customer-specific pricing, production and other commercial terms. GrafTech also is prohibited from adding similar terms to future contracts with Conoco for the ten-year period term of the proposed Final Judgment. Second, to enforce this prohibition, GrafTech must produce copies of each petroleum needle coke supply agreement to the United States on an annual basis. As an additional safeguard against any informal exchange of pricing or output information between GrafTech, Seadrift and Conoco, the proposed Final Judgment also mandates that GrafTech strictly segregate employees who negotiate terms with Conoco from those who make decisions about pricing and production at Seadrift, and vice versa. Finally, so that the United States can detect any changes in capacity, production or sales that might suggest coordination, GrafTech must report capacity, sales and production information on a quarterly basis.
These layers of protection prevent harm without imperiling the efficiencies that GrafTech expects from the merger. GrafTech anticipates substantial, merger-specific efficiencies by internal consumption of Seadrift petroleum needle coke, which would allow the elimination of double margins. Should this result in lower GrafTech prices for graphite electrode customers, it not only would benefit those customers directly, but it also likely would incentivize other graphite electrode competitors to reduce prices in response to that competition. Verified plans to improve the quality of Seadrift petroleum needle coke likely will benefit Seadrift's
The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(l). In making that determination in accordance with the statute, the court is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A)-(B). In considering these statutory factors, the court's inquiry is necessarily a limited one as the government is entitled to “broad discretion to settle with the defendant within the reaches of the public interest.”
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA, a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, a court may not “engage in an unrestricted evaluation of what relief would best serve the public.”
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “within the reaches of the public interest.” More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ‘within the reaches of public interest.’ ”
Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, rather than to “construct [its] own hypothetical case and then evaluate the decree against that case.” Microsoft, 56 F.3d at 1459. Because the “court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place,” it follows that “the court is only authorized to review the decree itself,” and not to “effectively redraft the complaint” to inquire into other matters that the United States did not pursue.
In its 2004 amendments to the Tunney Act,
During the sixty-day comment period, the United States received only one comment, from a Russian graphite electrode competitor, Energoprom. Energoprom's comment, which objected to the scope of the remedy described in the proposed Final Judgment, is attached hereto. As explained in detail below, after careful review, the United States continues to believe that the proposed Final Judgment is in the public interest.
Energoprom, a competitor of GrafTech's, is the largest producer of graphite electrodes in the Russian Federation, with facilities in the Rostov and Novosibirsk regions of Russia. Energoprom argues first that the proposed Final Judgment should be expanded to require more thorough monitoring to protect competition in the petroleum needle coke market and, in the alternative, asserts that no settlement could be crafted that would prevent anticompetitive effects from the merger of GrafTech and Seadrift.
Energoprom first argues that the proposed Final Judgment does not require sufficient monitoring to prevent anticompetitive effects arising from coordination. The company contends that GrafTech's acquisition of Seadrift, in combination with GrafTech's supply agreement with Conoco, increases the likelihood of price fixing, output coordination, and other anticompetitive agreements between Seadrift and Conoco.
Second, Energoprom argues that neither the Complaint nor the proposed Final Judgment addresses the possibility that unilateral effects may result from the acquisition of Seadrift by Graftech. Energoprom argues that Seadrift has “a dominant market position” in the petroleum needle coke industry.
Energoprom's allegations are not new; in fact, the company expressed its concerns to the United States on several occasions during the investigation of the proposed acquisition. The United States is confident that Energoprom's suggestions for additional remedial measures are unnecessary to serve the public interest. Further, the United States's exercise of its discretion not to allege in the complaint potential unilateral effects from the acquisition is beyond the scope of Tunney Act review.
Energoprom asserts that, to prevent anticompetitive effects from potential coordination between GrafTech, Seadrift and Conoco, the Final Judgment must compel the “systematic” production of more information than the proposed Final Judgment currently requires, including “the conditions of contracts entered into by each producer with consumers,” each company's price lists, and “other documents” that reveal “basic economic indicators.”
The additional documents and information that Energoprom suggests should be required, at best, would be unnecessary supplements to the comprehensive remedy included in the proposed Final Judgment and, at worst, would impose a significant burden on GrafTech as well as other competitors and customers in this industry. The proposed Final Judgment already provides several layers of protection against potential anticompetitive effects, whether they manifest as price increases or output reductions, including significant reporting requirements. First, the proposed Final Judgment removes the mechanism likely to facilitate coordination on price and input by requiring that GrafTech amend its supply agreement with Conoco to remove the audit and MFN provisions prior to consummating the merger.
In addition, Energoprom's proposal that the proposed Final Judgment should require the “systematic collection, storage and processing” of information regarding customer contracts, price lists and other “economic indicators” ignores the significant administrative burden such a requirement would impose on the Defendants, without any attendant enforcement benefit. Moreover, Energoprom suggests this comprehensive collection of data would be useful only in an effort to measure “divergence” of Seadrift sales from “the market as a whole,”
Energoprom also objects to the ten-year duration of the requirements in the proposed Final Judgment, arguing that “[i]t is not clear” what the competitive environment will be like in ten years.
In sum, the carefully constructed layers of requirements and prohibitions included in the proposed Final Judgment are more than sufficient to remedy the harm alleged in the Complaint, and Energoprom's suggested additions merely would impose an unnecessary burden without providing any commensurate benefit to consumers.
Energoprom also argues that the United States should have alleged that the merger likely would lead to unilateral anticompetitive effects. Energoprom asserts that, even absent coordination with Conoco, the acquisition of Seadrift would be sufficient to allow GrafTech the ability to impose anticompetitive price increases or output restrictions on downstream customers of graphite electrodes. This argument, however, is not a valid basis for the Court to reject a proposed remedy during Tunney Act review. As discussed above, in a Tunney Act proceeding the Court must evaluate the adequacy of the remedy only for the antitrust violations alleged in the complaint.
Accordingly, the United States continues to believe that the proposed Final Judgment will remedy the competitive harm likely to result from GrafTech's acquisition of Seadrift and that entry of the proposed Final Judgment is in the public interest.
The issues raised in the public comment were among the many considered by the United States when it evaluated the sufficiency of the proposed remedy. The United States has determined that the proposed Final Judgment, as drafted, provides an effective and appropriate remedy for the antitrust violations alleged in the Complaint and is therefore in the public interest. The United States will move this Court to enter the proposed Final Judgment after the comment and this response are published in the
I, Stephanie A. Fleming, hereby certify that on March 3, 2011, I caused a copy of the foregoing Response of Plaintiff United States to Public Comment on the Proposed Final Judgment to be served upon defendants GrafTech and Seadrift, mailing the documents electronically to their duly authorized legal representatives as follows:
In connection with filing a Complaint on 29.11.2010 by the United States of America, represented by Antitrust Division of the U.S. Department of Justice to the U.S. District Court,
The above Complaint was filed by the United States of America in the announcement of GrafTech—the world's largest manufacturer of graphite electrode UHP, used in electric arc furnaces for electric steel smelting, about the proposed acquisition of Seadrift—the second largest world producer of petroleum needle coke—a key raw material used to produce graphite electrode UHP. The Complaint seeks to reduce the expected anticompetitive effect of the acquisition due to taking by the parties to the transaction a number of measures listed in the proposed Final Judgment.
ENERGOPROM Group is Russia's largest producer of graphite electrodes UHP, supplies the goods to Europe and the USA and uses petroleum needle coke in the production. ENERGOPROM Group considers that the aforementioned transaction is contrary to the basic principles of antitrust laws, which might result in substantial harm to the competition not only on the world petroleum needle coke market, but also as a consequence—on the market of graphite electrodes UHP and electric steel market.
According to subsection 2 of section II of the Competitive Impact Statement the alleged acquisition of Seadrift by GrafTech may substantially lessen competition in the worldwide sale of petroleum needle coke because it will allow Seadrift to be involved in the scope of the long-term petroleum needle coke supply agreements (“Supply Agreements”) between GrafTech and Conoco Philips Company (hereinafter—“Conoco”)—a competitor of Seadrift, the world's largest producer of needle coke, under which Conoco must provide petroleum needle coke to GrafTech with the most-favored-nation (“MFN”) basis meaning that prices to GrafTech may not exceed the lowest price charged by Conoco to its other customers;
However, even under the circumstances of absence of the MFN regime and rights to audit, acting between GrafTech and Conoco in respect of supply may provide GrafTech (and hence Seadrift) with inappropriate, in this situation, competitive information with respect to pricing, supply and production.
This situation creates the possibility of price fixing plot, coordination of industrial production volume and other anticompetitive agreements of Seadrift with its competitor—Conoco.
Sections IV and V of the proposed Final Judgment provide measures (the required conduct and prohibited conduct of parties to the transaction), which are designed to neutralize damage to the competition, which is applied by the acquisition in question.
In accordance with these sections of the proposed Final Judgment GrafTech and Seadrift shall:
These provisions in the opinion of the Antitrust Division of the U.S. Department of Justice help to ensure that defendants comply with the proposed Final Judgment, as well as ensure that Conoco and Seadrift do not coordinate their actions in terms of production volumes and prices.
In our opinion the measures referred to in the proposed Final Judgment are not sufficient and proportionate to damage caused to competition by the acquisition.
In order to prevent coordination of the two largest producers of petroleum needle coke it is necessary to carry out systematic collection, storage and processing of information about functioning of these companies in the product market by analyzing the conditions of contracts entered into by each producer with consumers, price list of each company and other documents. In this case, the most important condition for determining coordination is fixed divergence by the dynamics of basic economic indicators of the activities of these companies with the average data of similar indicators for the market on the whole.
The proposed Final Judgment does not stipulate the need to provide by companies such documents and information.
In addition, the proposed Final Judgment is only valid for 10 years. It is not clear how will competitive environment be ensured at the end of this period.
Along with this, we would like to point out the following. The Complaint in question, Competitive Impact Statement, the proposed Final Judgment analyzes only one aspect of the anti-competitive acquisitions—possibility of action coordination of two competitors—Seadrift and Conoco companies. Another important aspect of the transaction is not touched upon. Before point it out, it is necessary to give a brief description of the world petroleum needle coke market.
World petroleum needle coke market is characterized by several features:
(1) A limited number of producers.
Only four companies work on the world petroleum needle coke market, including Conoco and Seadrift. The number and composition of producers did not change for a long time.
(2) High barriers to entry the market.
Specificity of petroleum needle coke market stipulates:
• Large capital-construction facility for the production of petroleum needle coke, and in case of the existing setup—a significant change in the organization of the refinery;
• High quality requirements for raw materials or need to prepare raw materials by its desulphurization.
• Use of the closed technologies that require long-term, debugging.
• Availability of skills and experience in technical and laboratory staff.
• Strict requirements for the quality of the original product.
• Limited sales market—only the electrode industry.
Thus, the market for petroleum needle coke is capital intensive and niche, and barriers to entry are high.
(3) Lack of substitute products to petroleum needle coke.
Neither pitch needle coke nor anode coke can neither be mixed with the petroleum needle coke, nor less serve as a complete substitute for petroleum needle coke. It is fully described in paragraphs 12-14, Section IV of the Complaint.
(4) Low-elasticity of demand for the goods, which means that increasing the price for the goods does not entail reducing the demand for it, which in turn is caused by the fact that the volume of demand exceeds the supply of goods on the market.
All the above indicates that the world petroleum needle coke market is oligopolistic (market of collective dominance), so that each participant of the market, including the Seadrift company, occupies a dominant position and has a large market weight, regardless of the size of its market share.
This fact in itself is a cause for heightened attention to the behavior of each such entity on the market because abuse by such entity a dominant position leads to serious negative consequences for competition.
In this situation Seadrift—a company with a dominant market position of the petroleum needle coke is acquired by the company, which is the world's largest producer of graphite electrode UHP.
This acquisition creates a situation where the production volume of petroleum needle coke and sales policy of this raw material to the producers of graphite electrodes is determined by another producer of graphite electrodes—their direct competitor. This situation creates a wide field for abuse and may lead to a significant deterioration of competition not only in the petroleum needle coke, but also in the market of graphite electrode UHP.
Section III of the Competitive Impact Statement states: “GrafTech anticipates substantial, merger-specific efficiencies by internal consumption of Seadrift petroleum needle coke, which would allow the elimination of double margins. Should this result in lower GrafTech prices for graphite electrodes downstream, it likely would incentivize other graphite electrodes competitors to reduce prices in response of that competition”.
We do not believe that these conclusions are correct and, on the contrary, we would like to indicate the following possible ways to abuse by GrafTech and Seadrift companies:
(1) GrafTech may use the control over the supply of petroleum needle coke produced by Seadrift company to reduce the production of petroleum needle coke and higher prices for graphite electrodes.
By limiting the supply of petroleum needle coke GrafTech may interfere other producers of graphite electrodes to deliver the required amount of graphite electrodes to maintain the same level of production in industry.
(2) Prices for needle coke produced by Seadrift for other customers may be raised; so GrafTech may increase its market share at the expense of other producers of graphite electrodes because they couldn't provide consumers as low price for electrodes as GrafTech did.
(3) GrafTech may use the methods of unfair competition, forcing Seadrift waive or deviate without good reason to conclude contracts with particular buyers, to set different prices for coke for different customers, to impose needle coke consumers contract terms not profitable for them. This creates a situation where market players will be in different conditions and products of some may become uncompetitive.
In conclusion, we would like to draw attention to one point.
The market of petroleum needle coke and graphite electrodes UHP market are global and the Russian market is its integral part.
According to Russian law, if the transaction made outside the territory of the Russian Federation may have an impact on the state of competition in the Russian Federation it is subject to agreement with the Federal Antimonopoly Service of the Russian Federation. To our knowledge, Seadrift and GrafTech companies did not receive such approval, and therefore violated the laws of the Russian Federation.
Summarizing up the above said in its Complaint, the United States represented by Antitrust Division of the U.S. Department of Justice do not cover all the negative effects of the acquisition in question, but analyze only one aspect of it. But even in this aspect the measures stipulated by the proposed Final Judgment are not adequate and sufficient to prevent damage by the competition.
Public interests are to create maximum favorable conditions for the functioning of free market economy with there are separate, independent entities. The acquisition of Seadrift by GrafTech is inherently anti-competitive—GrafTech—the largest consumer of petroleum needle coke acquires the largest producer of petroleum needle coke, which forms the basis for discrimination of all other customers of this raw material in the whole world, which will negatively affect not only producers of graphite electrodes, but also producers of electric steel. In this connection the proposed Final Judgment by definition does not and can not be in the public interest, since the transaction should not be performed and approved under any circumstances, and therefore any proposed measures do not compensate for the damage which will be caused to competition in the petroleum needle coke market as well as and graphite electrodes market UHP that will negatively impact the electric steel market.
Based on the foregoing, ENERGOPROM Group requests Antitrust Division of the U.S. Department of Justice to withdraw its consent to the proposed Final Judgment.
Attachments:
All documents are appostilled and translated into English.
Contacts: Closed Joint Stock Company <<ENERGOPROM MANAGEMENT>> 123001, Russia, Moscow, Sadovaya-Kudrinskaya, 32/1, Tel +7 495 789 96 46, fax +7 495 789 96 47,
60-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with
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 Cathy A. Gallagher, Acting Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152; telephone: (202) 307-7297.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to email them to
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:
—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 agencies 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 submission of responses.
(1)
(2)
(3)
Form number: DEA Form 236.
Component: Office of Diversion Control, Drug Enforcement Administration, U.S. Department of Justice
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: DEA-236 provides the DEA with control measures over the importation and exportation of controlled substances as required by United States drug control laws and international treaties.
(5)
(6)
If additional information is required, contact: Lynn Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street, NE., Suite 2E-808, Washington, DC 20530.
60-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), 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 until May 17, 2011. 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 Cathy A. Gallagher, Acting Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152; telephone: (202) 307-7297.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to email them to
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)
Form Number: Notification of suspicious orders and thefts is provided in writing on an as needed basis and does not occur using a form.
Office of Diversion Control, Drug Enforcement Administration, Department of Justice.
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: Persons handling listed chemicals and tableting and encapsulating machines are required to report thefts, losses and suspicious orders pertaining to these items. These reports provide DEA with information regarding possible diversion to illicit drug manufacture.
(5)
(6)
If additional information is required contact: Lynn Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street, NE., Suite 2E-808, Washington, DC 20530.
Employment and Training Administration, DOL.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. 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. Currently, the Employment and Training Administration is soliciting comments concerning the collection of data about the Work Flex Plan Submission and Reporting Requirements.
A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee's section below on or before May 17, 2011.
Submit written comments to Kimberly Vitelli, Division of Workforce System Support, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4510, Washington, DC 20210, Telephone number: 202-693-3045 (this is not a toll-free number). Fax: 202-693-3015. E-mail:
Section 192 of the Workforce Investment Act (Pub. L. 105-220, August 7, 1998) permits states to apply for a workforce flexibility (Work-Flex) waiver authority to implement reforms to their workforce investment systems in exchange for program improvements. The Act provides that the Secretary may grant Work-Flex waiver authority for up to five years pursuant to a Work-Flex Plan submitted by a state. Under Work-Flex, governors are granted the authority to approve requests submitted by their local areas to waive certain statutory and regulatory provisions of WIA Title I programs. States may also request waivers from the Secretary of certain requirements of the Wagner-Peyser Act (Sections 8-10) as well as certain provisions of the Older Americans Act for state agencies that administer the Senior Community Service Employment Program (SCSEP). The intent of the Work-Flex provision is to provide states and local areas with operational flexibility to improve employment and training program productivity for adult, dislocated, and youth populations. One of the underlying principles for granting Work-Flex waivers is that the waivers will result in improved performance outcomes for persons served and that waiver authority will be granted in consideration of improved performance.
The proposed Work-Flex Quarterly Reporting instructions are slightly different than the currently approved collection. The Department of Labor proposes to eliminate four questions requesting States to provide sums of waivers granted, and replaces it with a question asking States to explain any conditions it imposes on local areas granted a waiver under the Work-Flex authority.
States requesting designation as a Work-Flex state must submit a Work-Flex Plan which includes descriptions of:
a. The process by which local areas in the state may submit and obtain approval by the state of applications for waivers of requirements applicable under Title I of WIA, including provisions for public review and comment on local area waiver applications.
b. The statutory and regulatory requirements of Title I that are likely to be waived by the state under the plan.
c. The requirements applicable under Sections 8-10 of the Wagner-Peyser Act that are proposed to be waived, if any.
d. The statutory and regulatory requirements of the Older Americans Act of 1965 applicable to state agencies on aging with respect to administration of the Senior Community Service Employment Program (SCSEP) that are proposed to be waived, if any.
e. The outcomes to be achieved by the waiver authority including, where appropriate, revisions to adjusted levels of performance included in the State or Local Plan under Title I of WIA.
f. Special administrative measures (in addition to current procedures) to be taken to ensure appropriate accountability for Federal funds in connection with the waivers.
g. Prior to submitting a Work-Flex plan, the state must provide all interested parties and the general public adequate notice and a reasonable opportunity for comment on the waivers proposed to be implemented. The plan should describe the process used for ensuring meaningful public comment, including a description of the
Report for each waiver granted:
1. Waiver (assigned by State)
2. Date received
3. Date granted
4. Local Area(s) requesting waiver
5. Purpose (brief statement)
6. Regulation/statute affected.
7. State-imposed conditions of waiver use, as appropriate.
The Department of Labor is particularly interested in comments which:
• 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.
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Employment and Training Administration, Labor.
Notice.
The Employment and Training Administration is issuing this notice to announce the receipt of a “Certification of Non-Relocation and Market and Capacity Information Report” (Form 4279-2) for the following:
All interested parties may submit comments in writing no later than April 1, 2011.
Copies of adverse comments received will be forwarded to the applicant noted above.
Address all comments concerning this notice to Anthony D. Dais, U.S. Department of Labor, Employment and Training Administration, 200 Constitution Avenue, NW., Room S-4231, Washington, DC 20210; or e-mail
Anthony D. Dais, at telephone number (202) 693-2784 (this is not a toll-free number).
Section 188 of the Consolidated Farm and Rural Development Act of 1972, as established under 29 CFR Part 75, authorizes the United States Department of Agriculture to make or guarantee loans or grants to finance industrial and business activities in rural areas. The Secretary of Labor must review the application for financial assistance for the purpose of certifying to the Secretary of Agriculture that the assistance is not calculated, or likely, to result in: (a) A transfer of any employment or business activity from one area to another by the loan applicant's business operation; or, (b) An increase in the production of goods, materials, services, or facilities in an area where there is not sufficient demand to employ the efficient capacity of existing competitive enterprises unless the financial assistance will not have an adverse impact on existing competitive enterprises in the area. The Employment and Training Administration within the Department of Labor is responsible for the review and certification process. Comments should address the two bases for certification and, if possible, provide data to assist in the analysis of these issues.
Signed: At Washington, DC, this 14th day of March 2011.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
By letters dated January 12, 2010, from Mr. Michael Mulligan, February 8, 2010, from Mr. Raymond Shadis, and February 20, 2010, from Mr. Thomas Saporito, these individuals (collectively “Petitioners”) filed separate petitions pursuant to Title 10 of the
Mr. Mulligan requested in his petition that: (1) The radioactive leak into the environment of VY be immediately stopped, VY be immediately shut down, and all leaking paths be isolated; and (2) VY disclose its preliminary “root cause analysis,” and the NRC release its preliminary investigative report on that analysis before plant startup.
Mr. Shadis on behalf of New England Coalition (NEC) requested in his petition that the NRC: (1) Require VY to go into cold shutdown and depressurize all systems in order to slow or stop the leak; (2) act promptly to stop or mitigate the leak(s); (3) require VY to reestablish its licensing basis by physically tracing records and reporting physical details of all plant systems that would be within scope as “Buried Pipes and Tanks,” in NUREG-1801, “Generic Aging Lessons Learned (GALL) Report,” and under the requirements of 10 CFR 50.54, “Conditions of licenses”; (4) investigate and determine why Entergy has been allowed to operate VY since 2002 without a working knowledge of all plant systems and why the NRC's Reactor Oversight Process (ROP) and review process for license renewal amendment did not detect this dereliction; (5) take notice of VY's many maintenance and management failures (from 2000-2010) and the ROP's failure to detect them early and undertake a full diagnostic evaluation team inspection using NRC Inspection Procedure 95003, “Supplemental Inspection for Repetitive Degraded Cornerstones, Multiple Degraded Cornerstones, Multiple Yellow Inputs or One Red Input”; and (6) require VY to apply for an amendment to its license renewal application that would address both aging analysis and aging management of all buried piping carrying or with the potential to carry radionuclides and/or the potential to interact with any safety or safety-related system.
Mr. Saporito requested in his petition that the NRC: (1) Order a cold shutdown mode of operation for VY because of leaking radioactive tritium; and (2) issue a confirmatory order modifying the NRC-issued license for VY so that the licensee must bring the nuclear reactor to a cold shutdown mode of operation until the licensee can provide definitive reasonable assurance to the NRC, under affirmation, that the reactor will be operated in full compliance with the regulations in 10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities,” and Appendix A, “General Design Criteria for Nuclear Power Plants,” to 10 CFR Part 50, Criterion 60, “Control of Releases of Radioactive Materials to the Environment,” and Criterion 64, “Monitoring Radioactivity Releases,” and other NRC regulations and authority.
Mr. Shadis stated during a public teleconference with the PRB on March 3, 2010, that the tritium leak is just one example of many maintenance and management failures at VY. All three petitioners raised a concern regarding what they perceive as the NRC's failure to examine the deficiencies at VY in an integrated manner. This concern has met the criteria for review in accordance with NRC's Management Directive (MD) 8.11 “Review Process for 10 CFR 2.206 Petitions.”
In an acknowledgment letter dated June 25, 2010, the petitioners were informed of the PRB's decision to deny the request for an immediate cold shutdown of VY because the PRB did not identify any urgent safety concerns. The NRC also informed the petitioners that their petitions were consolidated per the guidance in MD 8.11. The consolidated petition was accepted for review for the following specific issues and concerns stated by the petitioners in the petitions and/or supplemented during the teleconferences:
(1) Increasing concentrations of radiocontaminants in the soil and groundwater at VY, as well as an increasing area of contamination, are manifest on a daily basis. VY risks aggravating the contamination by continuing to run the reactor at full power while attempting over a period of a month to triangulate the location of a presumed leak by drilling a series of test wells in the affected area.
(2) During the license renewal application proceeding, the licensee averred that it was unaware of the existence of some buried pipes, now uncovered, and it has yet to discover their path and purpose.
(3) Entergy has, in 8 years of ownership, failed to learn and understand VY's design, layout, and construction. This failure to comprehend and understand the layout, function, and potentially the interaction of the plant's own piping systems constitutes a loss of design basis.
(4) The NRC's ROP has apparently failed to capture, anticipate, and prevent ongoing maintenance, engineering, quality assurance, and operation issues that have manifested themselves in a series of high-profile incidents since Entergy took over VY. The agency has repeatedly failed to detect root cause trends until they have, as in this instance, become grossly self-revealing.
(5) The NRC should ensure that Entergy has adequate decommissioning funds. The tritium leak will increase decommissioning costs because of the need for site radiological examination and soil remediation.
Copies of the petitions are available for inspection at the Commission's Public Document Room (PDR) at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, and from the NRC's Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the NRC Web site at
On January 7, 2010, Entergy reported to the NRC that water samples taken from groundwater monitoring well GZ-3 onsite at VY showed tritium levels above background. GZ-3 is about 70 feet from the Connecticut River. Tritium is another name for the radioactive nuclide hydrogen-3. Tritium occurs naturally in the environment because of cosmic ray interactions. It is also
Upon notification on January 7, 2010, of the detection of tritium in the monitoring well, the NRC's staff initiated actions to review and assess the condition, by reviewing all available sampling data, hydrologic information, and analyses; conducting an onsite inspection and assessment of Entergy's plans and process for investigating the condition; and making an independent determination of public health and safety consequence based on available information. NRC inspectors provided close regulatory oversight of Entergy's investigation in order to independently assure conformance with applicable NRC regulatory requirements, assess licensee performance, and evaluate the condition with respect to NRC's radiological release limits.
On February 27, 2010, following excavation and leak testing of the Advanced Off Gas (AOG) system pipe tunnel, Entergy reported that it had identified leakage into the surrounding soil, and therefore to the groundwater, from an unsealed joint in the concrete tunnel wall. The AOG pipe tunnel is located about 15 feet underground. Also, piping inside the tunnel had previously been found to be leaking, and the drain inside the tunnel had been found to be clogged. Soil samples in the vicinity showed traces of radioactive isotopes. Entergy reported that the leakage to the environment had been stopped by isolating piping and containing the water leaking from the AOG pipe tunnel. However, on May 28, 2010, Entergy reported a second leak from AOG piping into the soil. Entergy quickly isolated this leak and has sealed off that piping to prevent further leaks in that area. The contaminated soil was removed from the excavated area and is being stored in containers onsite for eventual disposal in accordance with NRC regulatory requirements.
As part of its oversight effort, NRC staff conducted an evaluation in accordance with NRC Manual Chapter 0309, “Reactive Inspection Decision Basis for Reactors,” from January 25 to April 10, 2010, to determine if the occurrence with the AOG piping constituted a significant operational event (i.e., a radiological, safeguards, or other safety-related operational condition) that posed an actual or potential hazard to public health and safety, property, or the environment. The evaluation reviewed the condition against the specified deterministic criteria that are based on regulatory safety limits, and determined that none of the criteria were met. Notwithstanding that determination, the NRC staff continued its review, oversight, and assessment of the condition, including an independent evaluation of any potential public health and safety consequences. The staff's activities included:
1. Several onsite inspections and reviews to assess radiological and hydrological data to establish reasonable assurance that members of the public were not, nor were they expected to be, exposed to radiation in excess of the dose limits for individual members of the public specified in 10 CFR 20.1301, (i.e., 100 millirem in a year) or the As Low As Is Reasonably Achievable (ALARA) dose objectives specified in 10 CFR Part 50, Appendix I.
2. Engagement of hydrological scientists from NRC's Office of Nuclear Reactor Regulation, Office of Regulatory Research, and the U.S. Geological Survey to independently assess the licensee's hydrological and geological data and conclusions on groundwater flow characteristics of the area.
3. Inspection in accordance with NRC Temporary Instruction TI-2515/173, “Review of the Implementation of the Industry Ground Water Protection Voluntary Initiative,” to determine the licensee's implementation of the specifications in the industry's groundwater initiative document NEI-07-07, “Industry Ground Water Protection Initiative—Final Guidance Document,” (ADAMS Accession No. ML072610036).
4. Confirmation of the basis, calculational methodology, and results obtained by the licensee to estimate a contaminated groundwater effluent release and off-site dose consequence to members of the public.
5. Analysis of selected ground water and environmental samples to aid in determining the adequacy of the licensee's analytical methods.
6. Approval for additional NRC inspection resources above the baseline inspection program to fully evaluate and provide continuing regulatory oversight of the licensee's investigation and remediation activities.
7. Documentation of the inspection scope and conclusions in publicly available NRC Inspection Reports.
As a result of these activities, the NRC established reasonable assurance, in a timely manner, that this groundwater condition would not result in any dose consequence that would jeopardize public health and safety. To date, information and data continue to support that the dose consequence attributable to the groundwater condition at VY remains well below the “As Low As Reasonably Achievable” (ALARA) dose objectives specified in 10 CFR Part 50, Appendix I; and that the NRC regulatory criteria of 10 CFR 20.1301, “Dose limits for individual members of the public,” was never approached.
In addition, representatives from the State of Vermont observed NRC inspection activities and conducted independent analyses of collected groundwater samples.
As discussed in Section I, the specific concerns raised by the petitioners which are used as the basis for their requests are discussed in the following paragraphs.
In order to address/remove the onsite contamination, Entergy installed an extraction well (GZ-EW1) on March 23, 2010. On April 7, 2010, Entergy placed into service a second extraction well (GZ-EW1A), with a higher flow capacity. As the plume progressed toward the Connecticut River, the extraction wells were sited accordingly, with GZ-15 being utilized for groundwater extraction at various times starting on July 28, 2010, followed by installation of extraction well EW-2 which began operation along with GZ-14 on September 13, 2010. As of December 21, 2010, Entergy has pumped approximately 307,000 gallons of groundwater out of these wells in order to reduce the amount of tritiated water in the groundwater. About 9,000 gallons of the extracted water was recycled to the facility, and about
The soil in the vicinity of the leak was contaminated with small amounts of radioactive particulates associated with nuclear plant operations, including manganese-54, cobalt-60, zinc-65, strontium-90, and cesium-137. Sampling indicated very little migration in the immediate area, which is typical for these radionuclides. Entergy has removed about 150 cubic feet of contaminated soil and packaged it for eventual disposal in accordance with NRC regulatory requirements. Although some minor amounts of contaminated soil may remain, NRC inspections indicate that this soil poses no threat to public health and safety. Areas of remaining minor contamination are expected to be evaluated, and as appropriate, remediated during plant decommissioning. The NRC's experience with decommissioned nuclear plants such as Maine Yankee, Haddam Neck, and Yankee Rowe indicates that these areas can be successfully remediated during decommissioning. The NRC's inspections indicate that no Federal regulatory limits have been exceeded, and there are no health or safety concerns for members of the public or plant workers. The initial NRC inspection covered the period of January 25 through April 14, 2010. Inspection results were initially discussed in an NRC inspection report with preliminary results, dated April 16, 2010 (ADAMS Accession No. ML101060419). The NRC issued its completed report on May 20, 2010 (ADAMS Accession No. ML101400040), and continued to inspect the licensee's actions in these areas. The follow-up NRC Inspection Report 05000271/2010010 was issued on January 7, 2011, ADAMS Accession No. ML110070085.
As part of its corrective action program, Entergy performed a root cause analysis (RCA) of the leakage event. The NRC assessed the comprehensiveness of this analysis and documented this review in NRC Inspection Report 05000271/2010009 dated October 13, 2010 (ADAMS Accession No. ML102860037). The NRC concluded that Entergy's root and apparent cause evaluations for the tritium ground water leakage events were appropriate and no violation of NRC requirements was identified.
As discussed, Entergy has identified the source of the leak and stopped it, and has reduced the onsite contamination by pumping out contaminated groundwater and removing about 150 cubic feet of contaminated soil. The NRC's inspections confirm that no Federal regulatory limits have been exceeded, and the public health and safety remains unaffected. Thus, no enforcement action is warranted for this concern.
On February 24, 2010, Entergy informed the NRC that some employees at VY had been removed from their site positions and placed on administrative leave. Entergy took these actions as a result of Entergy's independent internal investigation into alleged contradictory or misleading information provided to the State of Vermont that was not corrected. On May 27, 2010, an NRC audit team completed an onsite audit to independently verify that information provided by Entergy material to the renewal of the VY operating license was complete and accurate. The NRC staff reviewed the VY yard piping drawings to independently identify buried and underground piping located onsite. The NRC staff performed walk-downs of yard areas and conducted interviews with the buried piping program engineer. The NRC staff also reviewed the results of system walk-downs previously performed by NRC inspectors during the performance of NRC Inspection Procedure (IP) 71002, “License Renewal Inspection,” as documented in NRC Inspection Report 05000271/2007006, dated June 4, 2007 (ADAMS Accession No. ML071550330). Additionally, the NRC staff had the opportunity to observe exposed portions of buried piping that had been previously excavated by Entergy in conjunction with actions taken to investigate the cause of a leak from an underground portion of piping in the AOG system. The NRC staff compared the results of this review to a list of buried and underground piping Entergy had provided in preparation of the audit. The NRC staff did not find any discrepancies between Entergy's current accounting of buried and underground safety-related piping and the description contained in the license renewal application, and so concluded that all information provided to the NRC in the license renewal application was complete and accurate in accordance with 10 CFR 50.9. Note that non-safety underground piping is excluded from the license renewal process. The complete audit report dated September 3, 2010, may be found under ADAMS Accession No. ML102070412. Because the NRC staff did not identify a violation of NRC requirements, no enforcement action is warranted for this concern.
The design basis for VY is the information that “identifies the specific functions to be performed by a structure, system or component of a facility, and the specific values or ranges of values chosen for controlling parameters as reference bounds for design.” The design basis is submitted to the NRC and is approved by the NRC by issuance of the facility operating license. Any changes to the facility as described in the final safety analysis report (FSAR) must be either submitted to the NRC for approval through a license amendment, or changed in accordance with the provisions of 10 CFR 50.59. Licensees are required under 10 CFR 50.71(e) to update the FSAR, which was originally submitted as part of the application for the license, to assure that the information included in the FSAR contains the latest information developed. These submittals contain all the changes necessary to reflect information and analyses submitted to the Commission since the last update to the FSAR. The submittal includes the effects of all changes made in the facility or procedures as described in the FSAR and all safety analyses and evaluations performed by the licensee in support of approved license amendments or in support of conclusions that the plant design change did not require a license amendment.
As discussed in previous Section A.2, an NRC audit team compared the information Entergy provided in the license renewal application to the VY Technical Specifications and the FSAR. The NRC staff determined that the information in the FSAR would meet the requirements of 10 CFR 50.71(e) regarding maintenance of design basis information, consistent with the definition of “design bases” in 10 CFR
While a failure of the NRC's ROP is not something for which the NRC could take enforcement action against VY, the NRC staff is responding to the petitioners' concern. Objectives of the ROP include: (1) Improving the objectivity of reactor oversight so that subjective decisions and judgment are not central process features; (2) improving the scrutability of reactor oversight so that NRC actions have a clear tie to licensee performance; and (3) risk-informing reactor oversight so that NRC and licensee resources are focused on those aspects of performance having the greatest impact on safe plant operation.
The ROP evaluates plant performance using objective, risk-informed thresholds, which include the safety significance of inspection findings and performance indicators (PIs). Objective performance thresholds are intended to help determine the level of regulatory engagement appropriate to licensee performance in each cornerstone area. The thresholds were established so that sufficient margin existed between nominal performance bands to allow for licensee initiatives to correct performance problems before they warrant escalated regulatory involvement. Sufficient margin exists to allow for both NRC and licensee corrective actions to be taken in response to declining performance before plant operation becomes unsafe. Under the ROP, performance deficiencies that have no impact on safety are considered minor and are entered into a licensee's corrective action program for appropriate attention, but they do not result in any specific action by the NRC. However, the NRC reviews the licensee's corrective action program on a routine basis while performing the baseline inspection program, and the staff performs more in-depth reviews on a periodic basis while performing the inspection procedure, “Problem Identification and Resolution.”
In addition to continuous inspection and assessment of VY performance, annual and mid-cycle assessments of VY performance are conducted. Annual and mid-cycle assessments involve review of the safety significance and common factors associated with inspection findings, and review of licensee objective performance indicators. The results associated with the last several reviews indicate that VY is being operated in a manner which preserves public health and safety. The high profile events referenced by the petitioners were inspected by a combination of specialist inspectors from both the NRC regional office and NRC headquarters, and by the onsite resident inspector staff. These events were determined to either not involve systems important to plant safety, or involved performance deficiencies of very low safety significance. In June 2009, the NRC conducted a Problem Identification and Resolution inspection at VY. The results of this inspection indicated that VY was generally effective in the implementation of its corrective action program; additionally, the safety culture of station employees, including station management, indicated that personnel had a willingness to identify, evaluate, and resolve plant deficiencies. The current and past performance information, including the Mid-Cycle and Annual Assessment Letters and inspection reports issued to VY and other licensees, are publically available and presented on the NRC's public Web site.
The ROP Action Matrix is used to determine the level of regulatory oversight warranted for varying levels of performance. VY is in Column 1 (Licensee Response Column) of the ROP Action Matrix because all inspection findings and PIs at this site have very low (
The deviation process described in IMC 0305 is used to address unique situations where the oversight defined by the ROP Action Matrix column might not be appropriate or sufficient. Even though performance at VY had not crossed any thresholds warranting additional regulatory oversight, the staff considered it appropriate to apply additional resources to monitor the licensee's efforts to address the onsite groundwater contamination and to follow up on the licensee's response to the NRC's Demand for Information dated March 1, 2010 (ADAMS Accession No. ML100570237). The staff requested and received authorization from the NRC's Executive Director for Operations (EDO) on April 5, 2010 (ADAMS Accession No. ML100960321), to deviate from the ROP Action Matrix to apply additional resources in these areas of licensee performance.
Although tritium has been found in onsite monitoring wells, the staff has not identified a hazard to public health and safety, and the staff expects any off-site radiological releases to be very small (
The NRC staff considers the ROP adequate for ensuring public health and safety and notes that the groundwater contamination at VY does not pose a public health or safety hazard.
The staff further notes that it has exercised its authority to deviate from the ROP Action Matrix to be responsive to unique circumstances and stakeholder concerns. The NRC staff conducts annual ROP self-assessments, which include evaluations of deviations from the Action matrix to see if improvements are warranted in the ROP. The results of the calendar year 2010 self-assessment will be included in the annual Commission paper and metric report, which will be issued in early April of 2011 and discussed during the Agency Action Review Meeting (AARM): a meeting of senior NRC managers to confirm the results and effectiveness of the ROP. The results of the AARM will be presented to the Commission in a public meeting in May 2011.
NRC establishes requirements for licensees to provide reasonable assurance that funds will be available for the decommissioning process. Reasonable assurance consists of a series of steps outlined in 10 CFR 50.75, “Reporting and record keeping for decommissioning planning.” VY must
In March of 2010, NRC's EDO established a Groundwater Task Force (GTF) to review the NRCs approach to ground water contamination conditions, given the recent incidents of leaking buried pipes at commercial nuclear power plants. The charter of the Task Force was to reevaluate the recommendations made in the Liquid Radioactive Release Lessons Learned Task Force Final Report dated September 1, 2006 (ADAMS Accession No. ML062650312); review the actions taken in Commission Paper SECY-09-0174 “Staff Progress in Evaluation of Buried Piping at Nuclear Reactor Facilities” (ADAMS Accession No. ML093160004); and review the actions taken in response to recent releases of tritium into groundwater by nuclear facilities.
The GTF completed its work in June 2010 and provided its report to the EDO. The report characterized a variety of issues ranging from policy issues to communications improvement opportunities. The complete report may be found under ADAMS Accession No. ML101740509. The GTF determined that the NRC is accomplishing its stated mission of protecting public health, safety, and protection of the environment through its response to groundwater leaks/spills. Within the current regulatory structure, the NRC is correctly applying requirements and properly characterizing the relevant issues. However, the GTF reported that there are further observations, conclusions, and recommendations that the NRC should consider in its oversight of groundwater contamination incidents.
The EDO appointed a group of NRC senior executives to review the report and consider its findings. The group reviewed the GTF final report, including the conclusions, recommendations, and their bases. They identified conclusions and recommendations that do not involve policy issues, and tasked the NRC staff to address them. They have also identified policy issues, and a policy paper has been sent to the Commission discussing those issues.
A public workshop was held on October 4, 2010, with external stakeholders to discuss the findings of the GTF Report and to receive input on the potential policy issues. In addition, a request for public comment was published in the
As summarized above, the NRC staff did not identify any violations and the public health and safety remains reasonably assured. Thus, no enforcement action against VY is warranted. The NRC staff concludes that the petitioners' concerns have been addressed and resolved such that no further action is needed in response to the petitions.
As provided in 10 CFR 2.206(c), a copy of this Director's Decision will be filed with the Secretary of the Commission for the Commission to review. As provided for by this regulation, the Decision will constitute the final action of the Commission 25 days after the date of the Decision unless the Commission, on its own motion, institutes a review of the Decision within that time.
For the Nuclear Regulatory Commission.
Notice is hereby given that petitions dated January 12, 2010, from Mr. Michael Mulligan, February 8, 2010, from Mr. Raymond Shadis, and February 20, 2010, from Mr. Thomas Saporito, have requested that, under Title 10 of the
Mr. Mulligan requested in his petition that (1) the radioactive leak into the environment of VY be immediately stopped, VY be immediately shut down, and all leaking paths be isolated, and (2) VY disclose its preliminary root cause analysis and the NRC release its preliminary investigative report on this analysis before plant startup.
Mr. Shadis requested in his petition that the NRC (1) require VY to go into cold shutdown and depressurize all systems in order to slow or stop the leak, (2) act promptly to stop or mitigate the leak(s) and not wait until all issues raised by New England Coalition are resolved, (3) require VY to reestablish its licensing basis by physically tracing records and reporting physical details of all plant systems that would be within scope as “buried pipes and tanks” in NUREG-1801, “Generic Aging Lessons Learned (GALL) Report,” and under the requirements of 10 CFR 50.54, “Conditions of Licenses,” (4) investigate and determine why Entergy has been allowed to operate VY since 2002 without a working knowledge of all plant systems, and why the NRC's Reactor Oversight Process (ROP) and review process for license renewal amendment did not detect this dereliction, (5) take notice of Entergy Nuclear Vermont Yankee's many maintenance and management failures (from 2000 to 2010) and the ROP's failure to detect them early and undertake a full diagnostic evaluation team inspection or NRC Inspection
Mr. Saporito requested in his petition that the NRC (1) order a cold-shutdown mode of operation for VY because of leaking radioactive tritium and (2) issue a confirmatory order modifying the NRC-issued license for VY so that the licensee must bring the nuclear reactor to a cold-shutdown mode of operation until the licensee can provide definitive reasonable assurance to the NRC, under affirmation, that the reactor will be operated in full compliance with the regulations in 10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities,” and General Design Criteria 60, “Control of Releases of Radioactive Materials to the Environment,” and 64, “Monitoring Radioactivity Releases,” of Appendix A, “General Design Criteria for Nuclear Power Plants,” to 10 CFR Part 50, and with other NRC regulations and authority.
The requests are being treated under 10 CFR 2.206 of the Commission's regulations. The requests have been referred to the Director of the Office of Nuclear Reactor Regulation (NRR). As provided by 10 CFR 2.206, the NRC will take appropriate action on this consolidated petition within a reasonable time.
Each petitioner stated that the tritium leak is just one example of many maintenance and management failures at VY. All three raised a concern about what they perceive as the NRC's failure to examine the deficiencies at VY in an integrated manner. Although the individual petition was written to request enforcement action specifically because of the tritium leak, during each of the transcribed phone calls, each petitioner urged the NRC to take a broader view and assess operational and performance failures at VY collectively instead of individually. This concern has met the criteria for review in accordance with Management Directive 8.11, “Review Process for 10 CFR 2.206 Petitions.”
Subsequently, the Petition Review Board recommended that the NRC accept the consolidated petition for review for the following specific issues and concerns identified in the petitions and supplemented during the teleconferences:
1. Increasing concentrations of radiocontaminants in the soil and groundwater at VY, as well as an increasing area of contamination, are manifest on a daily basis. VY risks aggravating the contamination by continuing to run the reactor at full power while attempting over a period of a month to triangulate the location of a presumed leak by drilling a series of test wells in the affected area.
2. During the license renewal application proceeding, the licensee averred that it was unaware of the existence of some buried pipes, now uncovered, and it has yet to discover their path and purpose.
3. Entergy has, in 8 years of ownership, failed to learn and understand VY's design, layout, and construction. This failure to comprehend and understand the layout, function, and potentially the interaction of the plant's own piping systems constitutes a loss of design basis.
4. The NRC's ROP has apparently failed to capture, anticipate, and prevent ongoing maintenance, engineering, quality assurance, and operation issues that have manifested themselves in a series of high-profile incidents since Entergy took over VY. The agency has repeatedly failed to detect root cause trends until they have, as in this instance, become grossly self-revealing.
5. The NRC should ensure that Entergy has adequate decommissioning funds. The tritium leak will increase decommissioning costs because of the need for site radiological examination and soil remediation.
The NRC sent a copy of the proposed Director's Decision to the petitioners and the licensee for comment on January 20, 2011. The staff did not receive any comments on the proposed Director's Decision.
The NRR staff determined that the activities requested by the petitioners have been completed, with the exception of immediate cold shutdown of Vermont Yankee. Therefore, the Director of NRR concludes that the petition has been granted in part and denied in part. The reasons for this decision are explained in the Director's Decision (DD-11-03) pursuant to 10 CFR 2.206.
Copies of the petitions (Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML100190688, ML100470430, and ML100621374) and the Director's Decision (ADAMS Accession No. ML110540558) are available for inspection at the Commission's Public Document Room (PDR) at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, and from the NRC's ADAMS Public Electronic Reading Room on the NRC Web site at
A copy of the Director's Decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206 of the Commission's regulations. As provided for by this regulation, the Director's Decision will constitute the final action of the Commission 25 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the Director's Decision in that time.
For the Nuclear Regulatory Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
On June 9, 2005, effective August 29, 2005 (
There are approximately 658 respondents
Written comments are invited on: (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 estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission 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 PRA that does not display a valid Office of Management and Budget (OMB) control number.
Please direct your written comments to: Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-8B-4 (17 CFR 274.14) is the form used by face-amount certificate companies to comply with the filing and disclosure requirements imposed by Section 8(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-8(b)). Form N-8B-4 requires disclosure about the face-amount certificate company's organization, controlling persons, business, policies, securities, investment adviser, depositary, management personnel, compensation, and financial statements. The Commission uses the information provided in the collection of information to determine compliance with Section 8(b) of the Investment Company Act of 1940.
Based on the Commission's industry statistics, the Commission estimates that there would be approximately one annual filing on Form N-8B-4. The Commission estimates that each registrant filing a Form N-8B-4 would spend 171 hours in preparing and filing the Form and that the total hour burden for all Form N-8B-4 filings would be 171 hours. Estimates of the burden hours are made solely for the purposes of the PRA, and are not derived from a comprehensive or even a representative survey or study of the costs of SEC rules and forms.
The information provided on Form N-8B-4 is mandatory. The information provided on Form N-8B-4 will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 203A-2(f),
This record maintenance requirement is a “collection of information” for PRA purposes. The Commission believes that approximately 58 advisers are registered with the Commission under rule 203-2A(f), which involves a recordkeeping requirement manifesting in approximately four burden hours per year per adviser and results in an estimated 232 of total burden hours (4 × 58) for all advisers.
This collection of information is mandatory, as it is used by Commission staff in its examination and oversight program in order to determine continued Commission registration eligibility for advisers registered under this rule. Responses generally are kept confidential pursuant to section 210(b) of the Advisers Act.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget (“OMB”) for extension and approval.
Section 19(b) of the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a-19(b)) authorizes the Commission to regulate registered investment company (“fund”) distributions of long-term capital gains made more frequently than once every twelve months. Rule 19b-1 under the Act
Commission staff estimates that, on average, each year six funds file an application under rule 19b-1(e). The staff understands that funds that file an application generally use outside counsel to prepare the application. The cost burden of using outside counsel is discussed below. The staff estimates that, on average, the fund's investment adviser spends a total of approximately 4 hours to review an application, including 3.5 hours by an assistant general counsel, 0.5 hours by an administrative assistant, and the fund's board of directors spends an additional 1 hour, for a total of 5 hours. Thus, the Commission staff estimates that the annual hour burden of the collection of information imposed by rule 19b-1 is approximately five hours per fund, for a total burden of 30 hours.
The Commission staff estimates that there is no hourly burden associated with complying with the collection of information component of rule 19b-1(c).
As noted above, the Commission staff understands that funds that file an application under rule 19b-1(e) generally use outside counsel to prepare the application.
The Commission staff estimates that there are approximately 3759 UITs
Based on these calculations, the total number of respondents for rule 19b-1 is estimated to be 3,765 (3759 UIT portfolios + 6 funds filing an application under rule 19b-1(e)), the total annual hour burden is estimated to be 30 hours, and the total annual cost burden is estimated to be $211,950. These estimates of average annual burden hours and costs are made solely for purposes of the Paperwork Reduction Act. The collections of information required by 19b-1(c) and 19b-1(e) are necessary to obtain the benefits described above. Responses will not be kept confidential.
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 control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit the existing collection of information to the Office of Management and Budget for extension and approval.
Rule 17f-5 under the Investment Company Act of 1940 (15 U.S.C. 80a) (“Investment Company Act” or “Act”)
The collection of information requirements in rule 17f-5 are intended to provide protection for fund assets maintained with a foreign bank custodian whose use is not authorized by statutory provisions that govern fund custody arrangements,
The requirements that the foreign custody manager determine that fund assets will be subject to reasonable care with the eligible foreign custodian and under the custody contract, and that each contract contain specified provisions or equivalent provisions, are intended to ensure that the delegate has evaluated the level of care provided by the custodian, that it weighs the adequacy of contractual provisions, and that fund assets are protected by minimal contractual safeguards. The requirement that the foreign custody manager establish a monitoring system is intended to ensure that the manager periodically reviews each custody arrangement and takes appropriate action if developing custody risks may threaten fund assets.
Commission staff estimates that each year, approximately 135 registrants
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit these existing collections of information to the Office of Management and Budget (“OMB”) for extension and approval.
Rule 17f-7 (17 CFR 270.17f-7) permits funds to maintain their assets in
The collection of information requirements in rule 17f-7 are intended to provide workable standards that protect funds from the risks of using securities depositories while assigning appropriate responsibilities to the fund's primary custodian and investment adviser based on their capabilities. The requirement that the depository meet specified minimum standards is intended to ensure that the depository is subject to basic safeguards deemed appropriate for all depositories. The requirement that the custody contract state that the fund's primary custodian will provide an analysis of the custody risks of depository arrangements, monitor the risks, and report on material changes is intended to provide essential information about custody risks to the fund's investment adviser as necessary for it to approve the continued use of the depository. The requirement that the primary custodian agree to exercise reasonable care is intended to provide assurances that its services and the information it provides will meet an appropriate standard of care. The alternative requirement that the funds obtain adequate indemnification or insurance against the custody risks of depository arrangements is intended to provide another, potentially less burdensome means to protect assets held in depository arrangements.
The staff estimates that each of approximately 836 investment advisers
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit these existing collections of information to the Office of Management and Budget (“OMB”) for extension and approval.
Section 17(d) (15 U.S.C. 80a-17(d)) of the Investment Company Act of 1940 (“Act”) authorizes the Commission to adopt rules that protect funds and their security holders from overreaching by affiliated persons when the fund and the affiliated person participate in any joint enterprise or other joint arrangement or profit-sharing plan. Rule 17d-1 under the Act (17 CFR 270.17d-1) prohibits funds and their affiliated persons from participating in a joint enterprise, unless an application regarding the transaction has been filed with and approved by the
SBICs and their affiliated banks use form N-17D-1 to report any contemporaneous investments in a small business concern. The form provides shareholders and persons seeking to make an informed decision about investing in an SBIC an opportunity to learn about transactions of the SBIC that have the potential for self dealing and other forms of overreaching by affiliated persons at the expense of shareholders.
Form N-17D-1 requires SBICs and their affiliated banks to report identifying information about the small business concern and the affiliated bank. The report must include, among other things, the SBIC's and affiliated bank's outstanding investments in the small business concern, the use of the proceeds of the investments made during the reporting period, any changes in the nature and amount of the affiliated bank's investment, the name of any affiliated person of the SBIC or the affiliated bank (or any affiliated person of the affiliated person of the SBIC or the affiliated bank) who has any interest in the transactions, the basis of the affiliation, the nature of the interest, and the consideration the affiliated person has received or will receive.
Up to three SBICs may file the form in any year.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-3 requires that a broker-dealer that hold customer securities obtain and maintain possession and control of fully-paid and excess margin securities they hold for customers. In addition, the Rule requires that a broker-dealer that holds customer funds make either a weekly or monthly computation to determine whether certain customer funds need to be segregated in a special reserve bank account for the exclusive benefit of the firm's customers. It also requires that a broker-dealer maintain a written notification from each bank where a Special Reserve Bank Account is held acknowledging that all assets in the account are for the exclusive benefit of the broker-dealer's customers, and to provide written notification to the Commission (and its designated examining authority) under certain, specified circumstances. Finally, paragraph (o) of Rule 15c3-3, which only applies to broker-dealers that sell securities futures products (“SFP”) to customers, requires that such broker-dealers provide certain notifications to customers, and to make a record of any changes of account type.
There are approximately 279 broker-dealers fully subject to the Rule (i.e., broker-dealers that cannot claim any of the exemptions enumerated at paragraph (k)), of which approximately 13 make daily, 210 make weekly, and 56 make monthly, reserve computations. On average, each of these respondents require approximately 2.5 hours to complete a computation. Accordingly, Commission staff estimates that the resulting burden totals 36,780 hours annually ((2.5 hours × 240 computations × 13 respondents that calculate daily) + (2.5 hours × 52 computations × 210 respondents that calculate weekly) + (2.5 hours × 12 computations × 56 respondents that calculate monthly)).
A broker-dealer required to maintain the Special Reserve Bank Account prescribed by Rule 15c3-3 must obtain
In addition, a broker-dealer must immediately notify the Commission and its designated examining authority if it fails to make a required deposit to its Special Reserve Bank Account. Commission staff estimates that broker-dealers file approximately 33 such notices per year. Broker-dealers would require approximately 30 minutes, on average, to file such a notice. Therefore, Commission staff estimates that broker-dealers would spend a total of approximately 17 hours each year to comply with the notice requirement of Rule 15c3-3.
Finally, a broker-dealer that effects transactions in SFPs for customers also will have paperwork burdens associated with the requirement in paragraph (o) of Rule 15c3-3 to make a record of each change in account type.
Consequently, the staff estimates that the total annual burden hours associated with Rule 15c3-3 would be approximately 65,091 hours (36,780 hours + 100 hours + 17 hours + 28,194 hours).
In addition, a broker-dealer that effects transactions in SFPs for customers also will have an annualized cost burden associated with the requirements in paragraph (o) of Rule 15c3-3 to (1) provide each customer that plans to effect SFP transactions with a disclosure document containing certain information,
Records required to be created and notices required to be filed with the Commission pursuant to Rule 15c3-3 must be maintained in accordance with Rule 17a-4 (17 CFR 240.17a-4). The collection of information is mandatory and the information required to be provided to the Commission pursuant to these Rules are deemed confidential, notwithstanding any other provision of law under Section 24(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78x(b)) and Section 552(b)(3)(B) of the Freedom of Information Act (5 U.S.C. 552(b)(3)(B)).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-4 requires approximately 5,057 active, registered exchange members, brokers and dealers (“broker-dealers”) to preserve for prescribed periods of time certain records required to be made by Rule 17a-3 and other Commission rules, and other kinds of records which firms make or receive in the ordinary course of business. Rule 17a-4 also permits broker-dealers to employ, under certain conditions, electronic storage media to maintain these required records. The records required to be maintained under Rule 17a-4 are used by examiners and other representatives of the Commission to determine whether broker-dealers are in compliance with, and to enforce their compliance with, the Commission's rules.
The staff estimates that the average number of hours necessary for each broker-dealer to comply with Rule 17a-4 is 254 hours annually. Thus, the total burden for broker-dealers is 1,284,478 hours annually. The staff believes that compliance personnel would be charged with ensuring compliance with Commission regulation, including Rule 17a-4. The staff estimates that the hourly salary of a Compliance Clerk is $67 per hour.
Based on conversations with members of the securities industry and based on the Commission's experience in the area, the staff estimates that the average broker-dealer spends approximately $5,000 each year to store documents required to be retained under Rule 17a-4. Costs include the cost of physical space, computer hardware and software, etc., which vary widely depending on the size of the broker-dealer and the type of storage media employed. The Commission estimates that the annual reporting and record-keeping cost burden is $25,285,000. This cost is calculated by the number of active, registered broker-dealers multiplied by the reporting and record-keeping cost for each respondent (5,057 active, registered broker-dealers × $5,000).
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget (“OMB”) a request for extension of the previously approved collection of information discussed below.
The title for the collection of information is “Rule 206(4)-6” under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1
Rule 206(4)-6 contains “collection of information” requirements within the meaning of the Paperwork Reduction Act. 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 control number. The collection is mandatory and responses to the disclosure requirement are not kept confidential.
The respondents are investment advisers registered with the Commission that vote proxies with respect to clients' securities. Advisory clients of these investment advisers use the information required by the rule to assess investment advisers' proxy voting policies and procedures and to monitor the advisers' performance of their proxy voting activities. The information required by Rule 206(4)-6 also is used by the Commission staff in its examination and oversight program. Without the information collected under the rule, advisory clients would not have information they need to assess the adviser's services and monitor the adviser's handling of their accounts, and the Commission would be less efficient and effective in its programs.
The estimated number of investment advisers subject to the collection of information requirements under the rule is 10,207. It is estimated that each of these advisers is required to spend on average 10 hours annually documenting its proxy voting procedures under the requirements of the rule, for a total burden of 102,070 hours. We further estimate that on average, approximately 121 clients of each adviser would request copies of the underlying policies and procedures. We estimate that it would take these advisers 0.1 hours per client to deliver copies of the policies and procedures, for a total burden of 123,505 hours. Accordingly, we estimate that rule 206(4)-6 results in an annual aggregate burden of collection for SEC-registered investment advisers of a total of 225,575 hours.
Records related to an adviser's proxy voting policies and procedures and proxy voting history are separately
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange Commission (“Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Rule 18f-1 (17 CFR 270.18f-1) enables a registered open-end management investment company (“fund”) that may redeem its securities in-kind, by making a one-time election, to commit to make cash redemptions pursuant to certain requirements without violating section 18(f) of the Investment Company Act of 1940 (15 U.S.C. 80a-18(f)). A fund relying on the rule must file Form N-18F-1 (17 CFR 274.51) to notify the Commission of this election. The Commission staff estimates that approximately 52 funds file Form N-18F-1 annually, and that each response takes approximately one hour. Based on these estimates, the total annual burden hours associated with the rule is estimated to be 52 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. The collection of information required by rule 18f-1 is necessary to obtain the benefits of the rule. Responses to the collection of information will not be kept confidential. 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 control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Like most issuers of securities, when an investment company
Rule 482 contains certain requirements regarding the disclosure that funds are required to provide in qualifying advertisements. These requirements are intended to encourage the provision to investors of information that is balanced and informative, particularly in the area of investment performance. For example, a fund is required to include disclosure advising investors to consider the fund's investment objectives, risks, charges and expenses, and other information described in the fund's prospectus, and highlighting the availability of the fund's prospectus. In addition, rule 482 advertisements that include performance data of open-end funds or insurance company separate accounts offering variable annuity contracts are required to include certain standardized performance information, information about any sales loads or other nonrecurring fees, and a legend warning that past performance does not guarantee future results. Such funds including performance information in rule 482 advertisements are also required to make available to investors month-end performance figures via Web site disclosure or by a toll-free telephone number, and to disclose the
Rule 482 advertisements must be filed with the Commission or, in the alternative, with Financial Industry Regulatory Authority (“FINRA”).
As discussed above, rule 482 contains requirements that are intended to encourage the provision to investors of information that is balanced and informative, particularly in the area of investment performance. The Commission is concerned that in the absence of such provisions fund investors may be misled by deceptive rule 482 performance advertisements and may rely on less-than-adequate information when determining in which funds they should invest their money. As a result, the Commission believes it is beneficial for funds to provide investors with balanced information in fund advertisements in order to allow investors to make better-informed decisions.
The Commission estimates that 58,368 responses are filed annually pursuant to rule 482 by 3,540 investment companies offering approximately 16,225 portfolios, or approximately 3.6 responses per portfolio annually. Respondents consist of all the investment companies that take advantage of the safe harbor offered by the rule for their advertisements. The burden associated with rule 482 is presently estimated to be 5.16 hours per response. The hourly burden is therefore approximately 301,179 hours (58,368 responses × 5.16 hours per response).
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
Cost burden is the cost of services purchased to comply with rule 482, such as for the services of computer programmers, outside counsel, financial printers, and advertising agencies. The Commission attributes no cost burden to rule 482.The provision of information under rule 482 is necessary to obtain the benefits of the safe harbor offered by the rule. The information provided is not kept confidential.
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 control number.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt FINRA Rule 1230(b)(6) to establish a registration category and qualification examination requirement for certain operations personnel. The proposed rule change also would adopt continuing education requirements for such operations personnel and adopt NASD Rule 1120 (Continuing Education Requirements) as FINRA Rule 1250 (Continuing Education Requirements) in the consolidated FINRA rulebook with minor changes.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Given the growing complexity of the financial services industry and the importance of services provided by personnel in operations departments, FINRA is concerned about the potential for regulatory gaps in the area of registration and education requirements for individuals performing and overseeing member operations functions. Historically, federal and state law and self-regulatory organization
As described in detail below, FINRA is proposing to expand its registration provisions to require registration of certain individuals (“covered persons”) who are engaged in, responsible for or supervising certain member operations functions (“covered functions”) to enhance the regulatory structure surrounding these areas. The proposed rule change would amend proposed FINRA Rule 1230 (Registration Categories) to adopt a new representative registration category and qualification examination for such individuals (“Operations Professionals”)
Generally, covered persons would be those persons who are directly responsible for overseeing that tasks within the covered functions are performed correctly in accordance with industry rules, firm protocols, policies and procedures, and who are charged with protecting the functional and control integrity of the covered functions for a member. Only persons who are both “covered persons” (
The proposed rule change would require the following covered persons to register with FINRA as an Operations Professional:
(1) Senior management with responsibility over the covered functions;
(2) Supervisors, managers or other persons responsible for approving or authorizing work, including work of other persons, in direct furtherance of the covered functions; and
(3) Persons with the authority or discretion materially to commit a member's capital in direct furtherance of the covered functions or to commit a member to any material contract or agreement (written or oral) in direct furtherance of the covered functions.
Persons who perform a covered function, but whose responsibilities are below these specified levels, would not be required to register as Operations Professionals. Members must determine, based on a person's activities and responsibilities, whether such person would be considered a covered person and subject to the proposed requirements for Operations Professionals. A person's job title may not be clearly indicative of his or her obligation to register as an Operations Professional.
For the purpose of the proposed third category of covered persons, any person who has the authority or discretion materially to commit firm capital in direct furtherance of the covered functions or commit a firm to a material contract or agreement in direct furtherance of the covered functions would be required to register as an Operations Professional. As proposed in supplementary material .06 (Scope of Operations Professional Requirement), the determination as to what constitutes “materially” or “material” would be based on a member's pre-established spending guidelines and risk management policies. Generally, persons who do not have the authority or discretion to commit a member's capital, or to commit a member to a contract or agreement, above such pre-established spending guidelines and risk management policies would not be subject to registration as an Operations Professional under this provision.
Additionally, proposed supplementary material .06 would provide that any person whose activities are limited to performing a function ancillary to a covered function, or whose function is to serve a role that can be viewed as supportive of or advisory to the performance of a covered function, or who engages solely in clerical or ministerial activities in a covered function would not be required to register as an Operations Professional pursuant to paragraph (b)(6)(A) of the proposed rule. For example, internal audit, legal or compliance personnel who review but do not have primary responsibility for any covered function would not be required to register as an Operations Professional.
Consistent with FINRA guidance, persons subject to the new Operations Professional registration category would be considered associated persons of a member irrespective of their employing entity, and would be subject to all FINRA rules applicable to associated persons and/or registered persons.
Any person who meets the threshold in one of the three categories of covered persons identified above in Section A. who conducts activities or functions for a member in one or more of the following covered functions would be required to register as an Operations Professional:
(1) Client on-boarding (customer account data and document maintenance);
(2) Collection, maintenance, re-investment (
(3) Receipt and delivery of securities and funds, account transfers;
(4) Bank, custody, depository and firm account management and reconciliation;
(5) Settlement, fail control, buy ins, segregation, possession and control;
(6) Trade confirmation and account statements;
(7) Margin;
(8) Stock loan/securities lending;
(9) Prime brokerage (services to other broker-dealers and financial institutions);
(10) Approval of pricing models used for valuations;
(11) Financial control, including general ledger and treasury;
(12) Contributing to the process of preparing and filing financial regulatory reports;
(13) Defining and approving business requirements for sales and trading systems and any other systems related to the covered functions, and validation that these systems meet such business requirements;
(14) Defining and approving business security requirements and policies for information technology, including, but not limited to, systems and data, in connection with the covered functions;
(15) Defining and approving information entitlement policies in connection with the covered functions; and
(16) Posting entries to a member's books and records in connection with the covered functions to ensure integrity and compliance with the federal securities laws and regulations and FINRA rules.
The proposed rule change would include persons engaged in or supervising stock loan/securities lending activities that meet the depth of personnel as a covered person in Section A. above. FINRA also is proposing separate registration categories for a “Securities Lending Representative” and a “Securities Lending Supervisor.”
The proposed rule change would establish a new qualification examination for Operations Professionals that would provide reasonable assurance that such individuals understand their professional responsibilities, including key regulatory and control themes, as well as the importance of identifying and escalating red flags that may harm a member, a customer, the integrity of the marketplace, or the public.
In general, given the diversity of functions performed by covered persons, the proposed Operations Professional qualification examination would be a principles-based qualification examination with a regulatory focus to test for a broad understanding of a broker-dealer's business at a basic level, a basic understanding of the operations functions that support a broker-dealer's business and the regulations designed to achieve investor protection and market integrity that drive the operations processes and procedures conducted at a broker-dealer. As further detailed in Section E. below, the continuing education components associated with the Operations Professional registration category would provide competency training specific to the covered functions, as applicable.
The breadth and depth of coverage of the qualification examination would be determined through the use of testing industry standards used to develop examinations, and would include input and advice from covered persons active in the securities industry. The following are the proposed key content themes of the new Operations Professional qualification examination:
•
•
•
The proposed rule change would include an exception to the Operations Professional qualification examination requirement for persons who currently hold certain registrations (each an “eligible registration”) or have held one during the two years immediately prior to registering as an Operations Professional. The proposed exception also would apply to persons who do not hold an eligible registration, but prefer an alternative to taking the Operations Professional examination. Such persons would be permitted to register in an eligible registration category (subject to passing the corresponding qualification examination or obtaining a waiver) and use such registration to qualify for Operations Professional registration.
A person who wishes to obtain Operations Professional registration under the proposed exception would not be automatically waived-in, but would have to opt-in by requesting Operations Professional registration via Form U4 (the Uniform Application for Securities Industry Registration or Transfer) in the Central Registration Depository (“CRD®”).
FINRA conducted a review of the content outlines for each qualification examination it recognizes and identified examinations with broad content coverage that would be eligible for an exception to the Operations Professional examination requirement. Accordingly, persons who hold the following representative-level registration categories, or who have held such registration categories within the two years immediately prior to registering as an Operations Professional, would be qualified to register as an Operations Professional without passing the Operations Professional qualification examination:
• Investment Company Products/Variable Contracts Representative (Series 6)
• General Securities Representative (Series 7)
• United Kingdom Securities Representative (Series 17) or Canada Securities Representative (Series 37 or 38)
Additionally, persons who hold (or have held) certain principal-level registration categories would be qualified to register as an Operations Professional without passing the Operations Professional examination. Most principal-level qualification examinations have a prerequisite examination requirement that is satisfied with one of the representative qualification examinations listed above; however, FINRA also proposes to include principal-level qualification examinations that do not have a prerequisite, or have a prerequisite that can be met with a qualification examination not on the above list (
• Registered Options Principal (Series 4)
• General Securities Sales Supervisor (Series 9/10)
• Compliance Officer (Series 14)
• Supervisory Analyst (Series 16)
• General Securities Principal (Series 24)
• Investment Company Products/Variable Products Principal (Series 26)
• Financial and Operations Principal (Series 27)
• Introducing Broker-Dealer Financial and Operations Principal (Series 28)
• Municipal Fund Securities Limited Principal (Series 51)
• Municipal Securities Principal (Series 53)
The proposed exception would not apply to persons whose eligible registrations are revoked pursuant to FINRA Rules 8310 (Sanctions for Violation of the Rules) or 8320 (Payment of Fines, Other Monetary Sanctions, or Costs; Summary Action for Failure to Pay), suspended or otherwise deemed inactive.
FINRA notes that covered persons are generally acting in a supervisory position, so many persons will already hold one of the eligible registrations that would qualify for the exception to the Operations Professional examination requirement. As noted in Section A. above, entry-level operations personnel would not typically be subject to the proposed requirements for Operations Professionals.
The proposed rule change would require that individuals registered as Operations Professionals be subject to FINRA's Regulatory Element and Firm Element continuing education requirements as set forth in proposed FINRA Rule 1250 (Continuing Education Requirements).
The Regulatory Element program for Operations Professionals would provide instruction for Operations Professionals to: (1) Maintain and improve understanding of the regulatory and ethical aspects associated with the covered functions; (2) identify suspicious activities and/or red flags that could harm a customer, a firm, issuers of securities or the integrity of the marketplace; (3) maintain and improve knowledge and understanding of the covered functions; and (4) assist the Operations Professionals in keeping up with changes in the industry and regulations that impact their work.
Operations Professionals would be required to complete scenario-based modules based on the key content themes of the Operations Professional qualification examination, as described in Section C. above. The breadth and depth of coverage of the modules would be determined through the use of existing industry standards currently used to develop continuing education content and would include input and advice from operations professionals active in the securities industry. Individuals would be expected to complete the Regulatory Element continuing education requirement two years after passing the qualification examination and then every three years thereafter.
Individuals who avail themselves of the proposed exception to the Operations Professional qualification examination requirement with an eligible registration described above would be subject to the Regulatory Element program appropriate for such other registration category. For example, a person who registers as an Operations Professional by holding a General Securities Representative registration (Series 7) under the exception would be subject to the S101 continuing
Operations Professionals also would be subject to Firm Element training. To implement this change, as further discussed in Section G. below, the proposed rule change would include Operations Professionals in the definition of “covered registered persons” in proposed FINRA Rule 1250, and would require that firms deliver Firm Element training to Operations Professionals subject to the new registration and qualification requirements.
As noted above, any person who meets the depth of personnel criteria described in Section A. and is engaged in one or more covered functions described in Section B. would be required to register with FINRA as an Operations Professional. Such persons would be required to register by doing one of the following, as applicable: (1) Requesting Operations Professional registration via Form U4 in CRD and passing the Operations Professional qualification examination; (2) requesting Operations Professional registration via Form U4 in CRD and opting in to such registration based on their holding, or having held within the past two years, an eligible registration;
Members must identify persons required to register as an Operations Professional as of the effective date of the proposed rule change (“Day-One Professionals”) (
The 12-month transition period to pass a qualification examination would only apply to Day-One Professionals. Any person who is not subject to the registration requirements for Operations Professionals as of the effective date of the proposed rule change (
Members would be responsible for tracking and monitoring their associated persons to ensure that such persons are registered, and conducting their activities, in compliance with the time frames described above.
The proposed rule change would adopt NASD Rule 1120 (Continuing Education Requirements) as new FINRA Rule 1250 (Continuing Education Requirements). In addition to the proposed change noted in Section E., which would expand the scope of “covered registered persons” subject to the Firm Element to include persons registered as Operations Professionals, the proposed rule change would make additional minor changes to NASD Rule 1120 to update cross-references and reflect the conventions of the consolidated FINRA Rulebook.
NASD Rule 1120 and Incorporated NYSE Rule 345A were adopted in 1995 in response to the recommendation of a task force, which subsequently became the Securities Industry Regulatory Council on Continuing Education (the “Council”),
The Regulatory Element consists of periodic computer-based training on regulatory, compliance, ethical, supervisory subjects and sales practice standards. A registered person is required to participate and complete a designated Regulatory Element within a 120-day period that commences with the second anniversary of such person's initial securities registration, and reoccurs every three years thereafter for as long as such person remains in the securities business. Failure to complete the Regulatory Element will result in a registered person's registration becoming inactive and such person cannot conduct a securities business on behalf of the member until the requirement is met.
The Firm Element requirements currently apply to any person registered with a member who has direct contact with customers in the conduct of the member's securities sales, trading and investment banking activities, any person registered as a research analyst pursuant to NASD Rule 1050, and to the immediate supervisors of such persons (collectively, “covered registered persons”). However, as noted above, the proposed rule change would expand the scope of “covered registered persons” subject to the Firm Element to include persons registered as Operations Professionals. The Firm Element consists of annual, member-developed and administered training programs designed to keep covered registered persons current regarding securities products, services and strategies offered by the member. The Firm Element requires members to annually evaluate and prioritize their training needs (
FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The proposed rule change was published for comment in
Certain commenters generally opposed the proposed rule change stating that it is overly broad and ambiguous, poorly defined, imposes requirements that are unnecessary to meet FINRA's stated objectives and may have unintended consequences.
In response, FINRA notes that covered persons are performing regulated broker-dealer functions on behalf of a member, and believes such persons should be subject to registration, examination and continuing education requirements to ensure that they attain and maintain specified levels of competence and knowledge to properly carry out their responsibilities to the member and its customers. FINRA does not agree that principal approval or background checks and fingerprinting are sufficient safeguards to ensure members' operations departments are functioning in a manner that will promote investor protection to the highest level possible. The proposed rule change is intended, among other things, to increase covered persons' awareness and knowledge that they are operating in a regulated environment designed to protect investors' interests and the integrity of the operations of a broker-dealer. In addition, the proposed rule will help to ensure that any fraudulent activity that may start in the front office of a firm cannot be processed without passing through a properly registered and trained Operations Professional. Requiring registration, testing and training for Operations Professionals should further strengthen members' compliance with securities laws, rules and regulations.
Certain commenters expressed concern that requiring registration of covered persons will dramatically limit the pool of candidates that may be considered for hiring when personnel changes occur in operations departments.
Two commenters suggested FINRA reduce the obligations for Operations Professionals and specify that not all of the rules applicable to associated persons apply to such persons since they are generally not customer-facing personnel.
FINRA does not agree that Operations Professionals should be subject to a limited set of rules. Covered persons are not only associated persons of a member but their activities are crucial enough to the business of a member to require registration with FINRA. The proposed rule change does not alter a person's status as an associated person under Exchange Act Rule 3a4-1 or otherwise, nor does it address the definitions of certain types of compensation under FINRA rules. However, FINRA recognizes that additional guidance may be needed following the adoption of the proposed rule change and will address interpretive questions as needed, similar to FINRA's approach to other regulatory initiatives with wide-ranging and novel impacts.
Certain commenters requested clarification with respect to proposed FINRA Rule 1230(b)(6)(A)(i) regarding scope of the term senior management and whether this provision applies beyond senior managers with primary or direct responsibility over the covered functions.
FINRA believes this provision is clear as originally proposed and, while FINRA understands titles may differ between firms, members should be able to identify operations personnel that would be subject to proposed Rule 1230(b)(6)(A)(i) based on their functions and responsibilities as senior managers overseeing the covered functions. FINRA would consider any senior manager in the chain of command responsible for a covered function to be subject to the proposed rule, up to and including the Principal Operations Officer.
Proposed FINRA Rule 1230(b)(6)(A)(ii) would include as covered persons supervisors, managers or other persons responsible for approving or authorizing work, including work of other persons, in direct furtherance of the covered functions. One commenter suggested the proposed rule explicitly state that
FINRA believes proposed FINRA Rule 1230(b)(6)(A)(ii) is clear as proposed and notes that it consulted with industry representatives in developing the proposed rule change, including the definition and appropriate depth of personnel to be subject to the Operations Professional registration category. As noted above, FINRA believes members will be able to identify supervisors, managers or other persons responsible for approving or authorizing work in direct furtherance of the covered functions based on their functions and responsibilities. The phrases “approve or authorize work” and “work of other persons” are not legal terms of art but, rather, comport with commercially understood operating terms and do not require clarification. Accordingly, FINRA has not revised this provision as suggested by the commenters; however, FINRA proposes a minor modification to the original proposal by re-locating the phrase “including the work of other persons” to streamline the provision, as reflected in Section A. of the Purpose section.
As originally proposed in the
Based on the comments, FINRA has revised the third category of covered persons from the original proposal in the
Numerous commenters suggested that FINRA add language to the proposed rule to clarify, as stated in the
Based on the comments, and as noted in Section A. of the Purpose section of this rule filing, FINRA is proposing supplementary material .06 to the proposed rule to clarify that any person whose activities are limited to performing a function ancillary to a covered function, or whose function is to serve a role that can be viewed as supportive of or advisory to the performance of a covered function (
One commenter encouraged FINRA to clarify whether an Operations
As noted above, as registered persons, Operations Professionals will be subject to all FINRA rules applicable to associated persons and/or registered persons. Accordingly, pursuant to NASD Rule 3010(a)(5), each Operations Professional must be assigned to an appropriately registered representative(s) and/or principal(s) who shall be responsible for supervising that person's activities. Additionally, FINRA expects that each member would have at least one registered Operations Professional, who often may be the member's Financial and Operations Principal and/or the Principal Operations Officer. In this regard, neither principal registration, nor representative registration in another category, obviates the requirement for a covered person to register as an Operations Professional. As noted in Section D. of the Purpose section, there are numerous eligible registrations that would except such registered persons from the requirement to pass the Operations Professional qualification examination.
Certain commenters inquired as to the proposed rule change's relationship to, and consistency with, the proposals set forth in
The proposed rule change does not conflict with the proposals set forth in
One commenter noted the proposed rule change could have costly and burdensome implications regarding state registration and licensing so FINRA should be as clear as possible in defining who is covered under the proposed rule change.
Numerous commenters stated that the covered functions as proposed in the
Based on the comments, FINRA has made certain changes to the covered functions as originally proposed in the
To clarify the proposed rule change, FINRA has revised Rule 1230(b)(6)(B)(i) (as originally proposed in the
Two commenters requested a definition for the term “client on-boarding” in proposed FINRA Rule 1230(b)(6)(B)(v) (as originally proposed in the
Numerous commenters requested clarification with respect to the scope of proposed FINRA Rule 1230(b)(6)(B)(vi) (as originally proposed in the
Based on the comments, FINRA has revised the original proposal to
Additionally, certain commenters requested clarification with respect to proposed Rule 1230(b)(6)(B)(vii) (as originally proposed in the
FINRA has made minor changes to the original proposal with respect to Rule 1230(b)(6)(B)(vii). The proposed rule change renumbers this provision as proposed FINRA Rule 1230(b)(6)(B)(xiv) and includes as a covered function, “[d]efining and approving business security requirements and policies for information technology, including, but not limited to, systems and data, in connection with the covered functions.” As noted above, FINRA believes that covered persons engaged in defining and approving business security requirements and policies for information technology should be registered as Operations Professionals.
One commenter requested clarification with respect to proposed Rule 1230(b)(6)(B)(viii) (as originally proposed in the
Based on the comments and in line with the changes noted above, FINRA has revised Rule 1230(b)(6)(B)(viii). The proposed rule change renumbers this provision as proposed FINRA Rule 1230(b)(6)(B)(xv) and includes as a covered function, “[d]efining and approving information entitlement policies in connection with the covered functions.”
One commenter recommended that FINRA combine paragraphs (b)(6)(B)(vii) and (viii) (as originally proposed in the
FINRA believes that the proposed revisions to these provisions noted above clarify the proposed rule and is not proposing further changes at this time. FINRA notes that these covered functions should remain as separate items since they address different activities (
Certain commenters suggested deleting proposed Rule 1230(b)(6)(B)(xv) (as originally proposed in the
FINRA has revised Rule 1230(b)(6)(B)(xv) to clarify this covered function. The proposed rule change renumbers this provision as FINRA Rule 1230(b)(6)(B)(xvi) and includes as a covered function, “[p]osting to a member's books and records in connection with the covered functions to ensure integrity and compliance with the federal securities laws and regulations and FINRA rules.”
One commenter noted that some of the covered functions may cause confusion with respect to other registration categories, including proposed FINRA Rules 1230(b)(6)(B)(ix) and (xiv) (as originally proposed in the
One commenter noted that the title of the proposed registration category is too narrow and not reflective of the covered functions. Alternatively, the commenter suggested that the registration category should be titled “Operations, Support or Securities Lending Professionals.”
Certain commenters requested clarification that ongoing insurance company functions relating to variable annuity contracts as well as other functions performed by insurance company staff are not included in the covered functions.
One commenter noted that elements of the qualification examination and continuing education requirements have no relevance to the products and operations of limited purpose broker-dealers that comprise more than 50% of FINRA's membership.
Numerous commenters stated that an examination is unnecessary because training and education for operations personnel should be addressed in a member's WSPs
One commenter noted that based on the definition of a covered person, the Operations Professional qualification examination should be a principal-level examination with corresponding continuing education requirements.
FINRA believes the qualification examination requirement is appropriate as proposed. The proposed examination is being tailored to test for basic securities industry knowledge and ethics. Although the examination will not test for proficiency with respect to the specific covered functions, FINRA believes there is value in an examination that tests for general knowledge about the securities industry. The proposed examination will be appropriately tailored to individuals subject to the proposed registration requirements. It is crucial for covered persons to understand their professional responsibilities, including key regulatory and control themes, as well as the importance of identifying and escalating red flags that may harm a firm, its customers, the integrity of the marketplace, or the public.
Additionally, FINRA believes a representative-level examination is appropriate for Operations Professionals because the proposed registration category is based on functions performed by operations personnel and is not limited to supervisory or managerial staff (
One commenter suggested that FINRA modify the period for retaking the Operations Professional qualification examination if an applicant fails to 30 days like the Series 55.
One commenter noted that the proposed exceptions are so numerous that they dilute the regulatory intent of the proposed rule change; instead, FINRA should grant a limited number of exceptions to current operations employees.
Certain other commenters recommended a grandfather provision for experienced persons who have worked in operations areas for a certain
FINRA believes the proposed rule change clearly articulates the exception to the Operations Professional qualification examination requirement.
FINRA believes the two-year look back for the eligible registrations is appropriate and has not revised the proposal to extend this time period. The proposed look back is based on the window during which an associated person remains eligible to re-activate his or her registration based on previously qualifying for and holding such registration. A person who qualifies for the proposed exception based on their having held an eligible registration within the two years immediately prior to registering as an Operations Professional would be required to first re-activate such eligible registration prior to requesting Operations Professional registration.
Certain commenters encouraged FINRA to clarify whether the proposal requires currently registered principals to take both the S101 continuing education module and the S201
As stated in the
One commenter requested confirmation that FINRA does not intend to alter indirectly the definition of “associated person” or the existing regulatory guidance on outsourcing arrangements with the proposed rule change.