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Administrative Conference of the United States.
Final rule.
The Administrative Conference of the United States (ACUS or the Conference) is promulgating updated rules identifying its procedures for disclosure of records under the Freedom of Information Act and its procedures for protection of privacy and access to individual records under the Privacy Act of 1974.
Effective April 5, 2011.
Shawne C. McGibbon, General Counsel, at 202-480-2088 or
ACUS was established by the Administrative Conference Act, 5 U.S.C. 591-96. Following the loss of its funding in 1995, ACUS ceased operations. In 1996, its prior regulations (including Part 304) were eliminated. 61 FR 3539 (1996). Congress has now reauthorized and refunded ACUS, which has now reinitiated operations. These regulations provide the agency's procedures for disclosure of records, as required by the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and its procedures for protection of privacy and access to individual records, as required by the Privacy Act of 1974, 5 U.S.C. 552a, as amended. These regulations also reflect the principles established by President Obama's Presidential Memoranda on “Transparency and Open Government” and “Freedom of Information Act” issued on January 21, 2009 and Attorney General Holder's Memorandum on “The Freedom of Information Act (FOIA)” issued on March 19, 2009. Additionally, the regulations reflect the Conference's commitment to providing the fullest possible disclosure of records to the public. The proposed rule was published in the
ACUS received a single set of comments from one person, which suggested numerous technical corrections or clarifications, most of which were accepted and incorporated into the final rule. The final rule provides that, in general, e-mail may be used by requesters and the agency for submission of requests or agency responses. The more significant suggestions were addressed as follows.
The commenter suggested revising the procedure for handling appeals to ensure that a requester who receives an adverse determination on either a FOIA or Privacy Act request will always have a right to an administrative appeal. We have revised this provision to preserve appeal rights within the agency.
We have also accepted the commenter's suggestion to modify the fees section, so as to permit agency discretionary waivers where appropriate.
The commenter suggested that we omit multi-track processing because the agency is very small. We have retained the option of using more than one track to enable more efficient processing of simple requests.
ACUS has determined that the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), these regulations will not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).
In issuing these regulations, ACUS has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735. These regulations have not been reviewed by the Office of Management and Budget under the Executive Order since they are not a significant regulatory action within the meaning of the Executive Order.
Administrative practice and procedure, Freedom of information, Privacy.
For the reasons stated in the preamble, under the authority at 5 U.S.C. 552, 552a, and 591-96, the Administrative Conference of the United States amends 1 CFR Chapter III to add part 304 as set forth below:
5 U.S.C. 552, 591-96.
(a) This subpart contains the rules that the Administrative Conference of the United States (“ACUS” or “the agency”) follows in processing requests for disclosure of records under the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. 552, as amended, and in meeting its responsibilities under the Act. Note that electronic records are treated as records for the purposes of the FOIA. These rules should be read together with the text of the FOIA itself, which provides additional information about access to records maintained by the agency. They also may be read in conjunction with the agency's “Freedom of Information Act Reference Guide,” which provides basic information about use of the Act in relation to the agency's records. Requests made by individuals for access to records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a (2006 & Supp. II 2008), which are processed under subpart B of this part, are also processed under this subpart. The agency will automatically process the request under both provisions in order to provide the maximum possible records to the requester. Information routinely provided to the public as part of a regular agency activity (for example, press releases or recommendations adopted by the agency pursuant to the Administrative Conference Act, 5 U.S.C. 591
(b) As a matter of policy, ACUS makes discretionary disclosures of records or information exempt from disclosure under the FOIA whenever it is determined that disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court.
(c) The agency has designated its General Counsel as its Chief FOIA Officer, who has agency-wide responsibility for efficient and appropriate compliance with the FOIA and these implementing regulations. The General Counsel has designated the agency's Deputy General Counsel as its FOIA Public Liaison.
(a) ACUS maintains a public reading room that affords access to the records that the FOIA requires it to make regularly available for public inspection and copying even in the absence of a FOIA request, including a current subject-matter index of its reading room records that will be updated quarterly with respect to newly included records.
(b) ACUS also makes all reading room records that have been created by the agency regularly available to the public electronically on its Web site (
(a)
(b)
(c)
(a)
(b)
(1) Respond to the request regarding that record, after consulting with the agency that is best able to determine whether to disclose it and with any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding that record to another agency that originated the record (but only if that agency is subject to the FOIA). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it.
(c)
(d)
(e)
(a)
(b)
(c)
(2) Where the agency reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated.
(d)
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public concerning actual or alleged federal government activity, if made by a person primarily engaged in disseminating information; or
(iii) Other circumstances as determined by the agency.
(2) A request for expedited processing may be made at the time of the initial request for records (i.e., as part of the initial request) or at any later time.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category in paragraph (d)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. That requester also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived by the agency as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for expedited processing, the agency will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, then the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, then any appeal of that decision will be acted on expeditiously.
(a)
(b)
(c)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reason(s) for the denial, including any FOIA exemption(s) applied by the agency in denying the request;
(3) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) An indication on the released portion of a record of each exemption applied, at the place at which it was applied, if technically feasible.
(5) A statement that the denial may be appealed under § 304.8(a) and a description of the requirements of § 304.8(a).
(a)
(b)
(1) “Business information” means privileged or confidential commercial or financial information obtained by the agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.
(2) “Submitter” means any person or entity from whom the agency obtains business information, either directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.
(c)
(d)
(e)
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) The agency has reason to believe that the information may be protected from disclosure under Exemption 4.
(f)
(g)
(1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time subsequent to the notice.
(h)
(1) The agency determines that the information should not be disclosed;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12,600; or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous—except that, in such a case, the agency will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i)
(j)
(a)
(b)
(c)
(a)
(b)
(1) “Commercial use request” means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, including furthering those interests through litigation. The agency will determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request itself or because the agency has reasonable cause to doubt a requester's stated use, the agency will provide the requester a reasonable opportunity to submit further clarification.
(2) “Direct costs” means those expenses that an agency actually incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating duplication machinery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.
(3) “Duplication” means the making of a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. The agency will honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format.
(4) “Educational institution” means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To qualify under this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
(5) “Noncommercial scientific institution” means an institution that is not operated on a “commercial” basis, as that term is defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To qualify under this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
(6) “Representative of the news media,” or “news-media requester,” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. For this purpose, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the agency may also consider the past publication record of the requester in making such a determination. To qualify under this category, a requester must not be seeking the requested records for a commercial use. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use.
(7) “Review” means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes processing any record for disclosure—for example, doing all that is necessary to redact it and prepare it for disclosure. Review costs are recoverable even if a record ultimately is not disclosed. Review time includes time spent considering any formal objection to disclosure made by a business submitter under § 304.7 but does not include time spent resolving
(8) “Search” means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. The agency will conduct searches in the most efficient and least expensive manner reasonably possible. For example, it will not search on a line-by-line basis where duplicating an entire document would be quicker and less expensive.
(c)
(1)
(ii) For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee will be $5.00. Where a search and retrieval cannot be performed entirely by clerical personnel (for example, where the identification of records within the scope of a request requires the use of professional personnel) the fee will be $10.00 for each quarter hour of search time spent by professional personnel. Where the time of managerial personnel is required, the fee will be $15.00 for each quarter hour of time spent by those personnel.
(iii) For computer searches of records, requesters will be charged the direct costs of conducting the search, although certain requesters (as provided in paragraph (d)(1) of this section) will be charged no search fee and certain other requesters (as provided in paragraph (d)(3) of this section) will be entitled to the cost equivalent of two hours of manual search time without charge. These direct costs will include the costs of operator/programmer salary apportionable to the search.
(2)
(3)
(d)
(2) No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(3) Except for requesters seeking records for a commercial use, the agency will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent); and
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this section is $20.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (4) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $20.00.
(6) In the case of any request on which the agency does not comply with any of the time limits of the FOIA and for which no “unusual or exceptional circumstances” exist, as those terms are defined by the FOIA, the agency will not charge any search fee or, for such requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media, will not charge any duplication fee.
(e)
(f)
(g)
(h)
(i)
(2) Where the agency determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester that has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any agency within 30 days of the date of billing, the agency may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before it begins to process a new request or continues to process a pending request from that requester.
(4) In cases in which the agency requires advance payment or payment due under paragraph (i)(2) or (i)(3) of this section, the request will not be considered received and further work will not be done on it until the required payment is received.
(j)
(k)
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) To determine whether the first fee waiver requirement is met, the agency will consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute”' to an increased public understanding of those operations or activities.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to convey information effectively to the public will be considered. It will be presumed that a representative of the news media satisfies this consideration.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. The agency will not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(3) To determine whether the second fee waiver requirement is met, the agency will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. The agency will consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters will be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The agency ordinarily will presume that where a news-media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed primarily to serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver will be granted for those records.
(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and (k)(3) of this section insofar as they apply to each request. The agency will exercise its discretion to consider the cost-effectiveness of its investment of administrative resources in this decisionmaking process in deciding to grant waivers or reductions of fees.
(a) The agency will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(b) In the event that the agency contracts with another agency, entity, or person to maintain records for the agency for the purposes of records management, it will promptly identify such records in its “Freedom of Information Reference Guide” and specify the particular means by which request for such records can be made.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
5 U.S.C. 552a, 591-96.
(a)
(b)
(1) “Request for access to a record” means a request made under Privacy Act, 5 U.S.C. 552a(d)(1).
(2) “Request for amendment or correction of a record” means a request made under Privacy Act, 5 U.S.C. 552a(d)(2).
(3) “Request for an accounting” means a request made under Privacy Act, 5 U.S.C. 552a(c)(3).
(4) “Requester” means an individual who makes a request for access, a request for amendment or correction, or a request for an accounting under the Privacy Act.
(a)
(b)
(c)
(d)
(a)
(b)
(1) Respond to the request regarding that record, after consulting with the agency that is best able to determine whether the record is exempt from access and with any other agency that has a substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding that record to the agency that is best able to determine whether it is exempt from access, or to another agency that originated the record (but only if that agency is subject to the Privacy Act). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether it is exempt from access.
(c)
(d)
(e)
(a)
(b)
(c)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reason(s) for the denial, including any Privacy Act exemption(s) applied in denying the request; and
(3) A statement that the denial may be appealed under § 304.24(a) and a description of the requirements of § 304.24(a).
(a)
(b)
(c)
(a)
(b)
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of this section, including the name and business address of the official who will act on your appeal.
(c)
(d)
(e)
(f)
(1) Transcripts of testimony given under oath or written statements made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings, which are the official record of those proceedings; and
(3) Any other record that originated with the courts.
(a)
(b)
(1) Disclosures for which accountings are not required to be kept (i.e., disclosures that are made to officers and employees of the agency and disclosures required under the FOIA); or
(2) Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from a duly authorized representative of any such law enforcement agency specifying portion of the record desired and the law enforcement activity for which the record is sought.
(c)
The agency will charge fees for duplication of records under the Privacy Act in the same way in which it charges duplication fees under § 304.9 of subpart A. No search or review fee may be charged for any record under the Privacy Act.
(a)
(b)
(a)
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during business hours in order to prevent unauthorized persons from having access to them;
(3) Records are inaccessible to unauthorized persons outside of business hours; and
(4) Records are not disclosed to unauthorized persons or under unauthorized circumstances in oral, written or any other form.
(b)
Any approved contract for the operation of a record system will contain appropriate requirements issued by the General Services Administration in order to ensure compliance with the requirements of the Privacy Act for that record system. The contracting officer of the agency will be responsible for ensuring that the contractor complies with these contract requirements.
The agency will ensure that employees authorized to collect information are aware:
(a) That individuals may not be denied any right, benefit, or privilege as a result of refusing to provide their social security numbers, unless the collection is authorized either by a statute or by a regulation issued prior to 1975;
(b) That individuals requested to provide their social security numbers, or any other information collected from them, must be informed, before providing such information, of:
(1) Whether providing social security numbers (or such other information) is mandatory or voluntary;
(2) Any statutory or regulatory authority that authorizes the collection of social security numbers (or such other information);
(3) The principal purpose(s) for which the information is intended to be used;
(4) The routine uses that may be made of the information; and
(5) The effects, in any, on the individual of not providing all or any part of the requested information; and
(c) That, where the information referred to above is requested on a form, the requirements for informing such individuals are set forth on the form used to collect the information, or on a separate form that can be retained by such individuals.
The agency will inform its employees of the provisions of the Privacy Act, including the scope of its restriction against disclosure of records maintained in a system of records without the prior written consent of the individual involved, and the Act's civil liability and criminal penalty provisions. Unless otherwise permitted by law, an employee of the agency will:
(a) Collect from individuals and maintain only the information that is relevant and necessary to discharge the agency's responsibilities;
(b) Collect information about an individual directly from that individual to the greatest extent practicable when the information may result in an adverse determination about an individual's rights, benefits, or privileges under Federal programs;
(c) Inform each individual from whom information is collected of the information set forth in § 304.31(b);
(d) Ensure that the agency maintains no system of records without public notice and also notify appropriate agency officials of the existence or development of any system of records that is not the subject of a current or planned public notice;
(e) Maintain all records that are used by it in making any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the FOIA, make reasonable efforts, prior to
(g) Maintain no record describing how an individual exercises his or her First Amendment rights unless such maintenance is expressly authorized by statute or by the individual about whom the record is maintained or is pertinent to and within the scope of an authorized law enforcement activity;
(h) When required by the Privacy Act, maintain an accounting in the specified form of all disclosures of records by the agency to persons, organizations, or agencies;
(i) Maintain and use records with care in order to prevent the unauthorized or inadvertent disclosure of a record to anyone; and
(j) Notify the appropriate agency official of any record that contains information that the Privacy Act does not permit the agency to maintain.
The agency will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the Act.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the Privacy Act.
U.S. Consumer Product Safety Commission.
Notice of requirements; revision of testing terms.
The U.S. Consumer Product Safety Commission (“CPSC,” “Commission,” or “we”) is amending the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing to the lead paint ban regulations. We are taking this action to require CPSC and/or ASTM published test methods to be referenced by a third party conformity assessment body in the scope of its accreditation.
You may submit comments, identified by Docket No. CPSC-2008-0033, by any of the following methods:
Robert “Jay” Howell, Assistant Executive Director for he Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; e-mail:
Section 14(a)(3)(B)(i) of the Consumer Product Safety Act (CPSA), as added by section 102(a)(2) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, directed the CPSC to publish a notice of requirements for accreditation of third party conformity assessment bodies to test children's products for conformity with the Commission's regulations at 16 CFR part 1303,
In response to the September 22, 2008 notice of requirements, the International Laboratory Accreditation Cooperation (ILAC) and the American Association for Laboratory Accreditation (A2LA) submitted letters asking us to specify test methods to ensure that accreditation bodies are able to determine the acceptable technologies and methods for lead analyses. The September 22, 2008 notice of requirements stated that the accreditation must be to the International Standards Organization (ISO)/International Electrotechnical Commission (IEC) Standard ISO/IEC 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories,” and that the scope of the accreditation must include testing to the requirements of 16 CFR part 1303. However, these requirements for accreditation did not reference a specific test method, although the CPSC staff's test method (CPSC-CH-E1003-09) was made available on the CPSC Web site at:
The Commission is revising the September 22, 2008 notice of requirements to require reference of specific test methods for CPSC acceptance of accreditation of third party conformity assessment bodies to assess conformity with 16 CFR part
Test Method CPSC-CH-E1003-09 was revised in Test Method CPSC-CH-E1003-09.1 to reflect ministerial edits and remove the statement that the rules for accreditation for lead in paint testing do not explicitly require the use of a particular standard operating procedure. Additionally, the following statement was added. “Adjustments may be necessary to achieve total digestion for certain paints and should be based on sound chemistry knowledge and appropriate acids for the sample material being analyzed.” It is still based on standard test procedures, such as ASTM International (formerly the American Society for Testing and Materials) ASTM E1645, ASTM E1613-04, and Association of Official Analytical Chemists (AOAC) standard AOAC 974.02. This test method will be made available on the CPSC Web site at:
In addition to the CPCS's test methods, CPSC staff finds that ASTM F2853-10, “Standard Test Method for Determination of Lead in Paint Layers and Similar Coatings or in Substrates and Homogenous Materials by Energy Dispersive X-Ray Fluorescence Spectrometry Using Multiple Monochromatic Excitation Beams.” which uses a specific type of X-Ray Fluorescence (XRF) technology, may be used as a test method and is as effective, precise, and reliable as method CPSC-CH-E1003-09 posted on the CPSC Web site. The standard is available on the ASTM Web site at:
Many third party conformity assessment bodies operate on a two year cycle for review and renewal of accreditation. Accordingly, in order to give third party conformity assessment bodies sufficient time to amend their scope documents to reflect the specific test methods accepted by the Commission, CPSC-CH-E1003-09 and/or CPSC-CH-E1003-09.1 and/or ASTM F2853-10, CPSC-accepted third party conformity assessment bodies that are listed on the CPSC Web site as approved to 16 CFR part 1303 (without reference to a test method) will have two years from the date of publication of this notice in the
• 16 CFR part 1303 (CPSC-CH-E1003-09 and/or CPSC-CH-E1003-09.1), and/or
• 16 CFR part 1303 (ASTM F2853-10).
New applicants seeking CPSC acceptance of accreditation to test to 16 CFR part 1303 will have the option to apply without reference to a specific test method under 16 CFR part 1303 or to apply to the CPSC for acceptance to test to 16 CFR part 1303 according to one or more test methods for up to one year after publication of this notice in the
To make it easier for interested parties to understand the nature of the revisions, we are republishing the notice of requirements in its entirety for readability. The republished notice incorporates several nonsubstantive changes or grammatical changes, such as replacing the term “laboratory” with “third party conformity assessment body.” These changes were made to make the notice of requirements consistent with other recent notices of requirements published in the
The notice of requirements that appeared in the
For a third party conformity assessment body to be CPSC-accepted as accredited to test children's products for conformity with the lead paint ban and 16 CFR part 1303, it must be accredited to ISO/IEC 17025-2005 by an accreditation body that is a signatory to the ILAC-MRA, and the accreditation must be registered with, and accepted by, the Commission. A listing of ILAC-MRA signatory accreditation bodies is available on the Internet at:
The Commission will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations it has accepted and the scope of each accreditation.
In addition to the baseline accreditation requirements in Section II.A of this document above, firewalled conformity assessment bodies seeking accredited status by the CPSC must submit to the Commission copies, in English, of their training documents, showing how employees are trained to notify the Commission immediately and confidentially of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results. This additional requirement applies to any third party conformity assessment body in which a manufacturer or private labeler of a children's product to be tested by the third party conformity assessment body owns an interest of 10 percent or more. While the Commission is not addressing common parentage of a third party conformity assessment body and a children's product manufacturer at this time, it will be vigilant to see whether this issue needs to be addressed in the future.
As required by section 14(f)(2)(D) of the CPSA, the Commission must accept formally, by order, the application from a third party conformity assessment body before the third party conformity assessment body can become accredited by the CPSC as a firewalled conformity assessment body.
In addition to the baseline accreditation requirements of part II.A of this document above, the CPSIA permits accreditation of a third party conformity assessment body owned or controlled, in whole or in part, by a government if:
• To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;
• The third party conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity;
• The third party conformity assessment body is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited;
• The third party conformity assessment body's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies; and
• The third party conformity assessment body does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the third party conformity assessment body's conformity assessments.
The Commission will accept the accreditation of a governmental third party conformity assessment body if it meets the baseline accreditation requirements of part II.A of this document above and meets the additional conditions stated here. To obtain this assurance, CPSC staff will engage the governmental entities seeking accreditation.
The Commission has established an electronic accreditation acceptance and registration system accessed via the Commission's Internet site at:
Commission staff will review the submission for accuracy and completeness. In the case of baseline third party conformity assessment bodies and government-owned or government-operated conformity assessment bodies, when that review and any necessary discussions with the applicant are completed satisfactorily, the third party conformity assessment body in question is added to the CPSC's list of accredited third party conformity assessment bodies at:
Once the Commission adds a third party conformity assessment body to the list, the third party conformity assessment body then may begin testing children's products to support certification of compliance with 16 CFR part 1303, for which it has been accredited.
New applicants for CPSC acceptance of accreditation to 16 CFR part 1303 will have the option to apply to the CPSC without reference to a specific test method or to apply for CPSC acceptance to include a specific reference to 16 CFR part 1303 (CPSC-CH-E1003-09 and/or CPSC-CH-E1003-09.1) and/or 16 CFR part 1303 (ASTM F2853-10) for up to one year after publication of this notice in the
CPSC-accepted third party conformity assessment bodies for 16 CFR part 1303 without a reference to one of the specified test methods have up to two years from the date of publication of this notice in the
The September 22, 2008
This amended notice of requirements published today addresses only the CPSC acceptance criteria for a third party conformity assessment body for testing to the lead paint ban at 16 CFR part 1303. This amended notice does not affect the already-established criteria for CPSC acceptance of certificates of compliance. A product manufacturer's certificate of compliance to 16 CFR part 1303 must be based on testing by a third party conformity assessment body that is posted on the CPSC Web site as accepted for 16 CFR part 1303 at the time the product is tested. The Commission will accept a certificate of compliance with 16 CFR part 1303, Ban of Lead-Containing Paint for a children's product based on testing performed by an accredited (CPSC-accepted) third party conformity assessment body (including a government-owned or government-controlled conformity assessment body, or a firewalled conformity assessment body) if the testing was conducted on a date for which the third party conformity assessment body was listed as accepted by the CPSC for testing to the lead paint ban at 16 CFR part 1303.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an original new animal drug application (NADA) filed by Novartis Animal Health US, Inc. The NADA provides for the veterinary prescription use of robenacoxib tablets in cats for the control of postoperative pain and inflammation.
This rule is effective April 5, 2011.
Amy L. Omer, Center for Veterinary Medicine (HFV-114), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8336,
Novartis Animal Health US, Inc., 3200 Northline Ave., suite 300, Greensboro, NC 27408, filed NADA 141-320 that provides for the veterinary prescription use of ONSIOR (robenacoxib) Tablets in cats for the control of postoperative pain and inflammation associated with orthopedic surgery, ovariohysterectomy, and castration. The NADA is approved as of March 8, 2011, and the regulations are amended in 21 CFR part 520 by adding § 520.2075 to reflect the approval.
A summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning on the date of approval.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:
21 U.S.C. 360b.
(a)
(b)
(c)
(2)
(3)
Employee Benefits Security Administration, Labor.
Annual Reporting and Disclosure for Form 5500.
This document announces that certain technical revisions to the Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information) and the Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) of the Form 5500 Annual Return/Report of Employee Benefit Plan have been adopted in IRS Notice 2010-83 (2010-51 I.R.B. 862) and IRS Notice 2011-3 (2011-2 I.R.B. 263) to reflect funding relief alternatives retroactively available to defined benefit pension plans under the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (Pension Relief Act). The information that would be required either by way of amendment of the 2008 or 2009 Annual Return/Report or providing an attachment to the 2009 or 2010 Annual Return/Report in accordance with the IRS Notices, will also be added to the 2011 and later Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information) and the Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) of the Form 5500 Annual Return/Report of Employee Benefit Plan. Compliance with the Schedule SB and Schedule MB, as modified, will satisfy the pertinent Form 5500 actuarial information reporting requirements for the Department of Labor.
Steven Klubock, Internal Revenue Service (IRS), at the Employee Plans taxpayer assistance answering service at 1-877-829-5500 (a toll-free number), for questions relating to the Schedules MB and SB requirements under IRS Notices 2010-83 and 2011-3; Grace Kraemer, Pension Benefit Guaranty Corporation (PBGC), (202) 326-4024, for questions relating to annual reporting requirements under Title IV of ERISA in the technical revisions of the Schedules MB and SB; and Elizabeth A. Goodman, Employee Benefits Security Administration, U.S. Department of Labor, (202) 693-8523, for questions relating to this document. Except for the IRS, the telephone numbers referenced above are not toll-free numbers.
Sections 101, 104, and 4065 of ERISA, 29 U.S.C. 1021, 1024 and 1365, sections 6058(a) and 6059(a) of the Code, 26 U.S.C. 6058(a) and 6059(a), and the regulations issued under those sections, impose annual reporting and filing obligations on pension and welfare benefit plans, as well as on certain other entities. Plan administrators, employers, and others generally satisfy these annual reporting obligations by the filing of the Form 5500 Annual Return/Report of Employee Benefit Plan, including its schedules and attachments (Form 5500 Annual Return/Report), in accordance with the instructions and related regulations.
The Form 5500 Annual Return/Report is the principal source of information and data available to the Department of Labor (Department or Labor), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (collectively, Agencies) concerning the operations, funding, and investments of pension and welfare benefit plans. Actuarial information on defined benefit pension plans is required to be reported as part of the Form 5500 Annual Return/Report on the Schedule MB or the Schedule SB. The Form 5500 Annual Return/Report constitutes an integral part of each Agency's enforcement, research, and policy formulation programs, and is a source of information and data for use by other federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies. The Form 5500 Annual Return/Report also serves as a primary means by which plan operations can be monitored by participants and beneficiaries and by the general public.
The Pension Relief Act, Public Law 111-192, 124 Stat 1280 (2010), enacted on June 25, 2010, provided retroactive pension funding relief for single-employer and multiemployer defined benefit pension plans that are subject to the reporting requirements of Title I of ERISA. The IRS issued guidance in the form of questions and answers on the application of the special funding rules under the Pension Relief Act and the required notice of a decision by the plan sponsor to apply the special funding rules. IRS Notice 2010-83 provides guidance for sponsors of multiemployer defined benefit plans with respect to the special funding rules under Code § 431(b)(8), as added by section 211(a)(2) of the Pension Relief Act. IRS Notice 2011-3 provides guidance on the special rules relating to funding relief for single-employer defined benefit pension plans (including multiple employer defined benefit pension plans) under Code § 430(c)(2)(D) and § 430(c)(7), as added by section 201 of the Pension Relief Act, and Code § 430(f)(3)(D), as added by section 204 of the Act.
Certain technical revisions to the Form 5500 Schedule MB and SB were necessary to conform the actuarial reporting requirements for defined benefit pension plans to the application of funding relief under the Pension Relief Act. The Internal Revenue Service announced and described those technical revisions in IRS Notice 2010-83 and Notice 2011-3. Specifically, the notices provide that a Schedule MB or Schedule SB that was filed without reflecting application of the special funding rules or was filed reflecting application of the special funding rules, but using calculations that were different from those required by IRS Notice 2010-83 or Notice 2011-3, need not be amended. Instead, the Schedule MB or Schedule SB filed for a subsequent plan year that is no later than the plan year beginning in 2010 that must include an attachment showing how the information regarding the special funding rules on any earlier year Schedule MB or SB that did not comply with the notices, would have differed if it had complied. In addition, the IRS Notices describe the application of funding relief under the Pension Relief Act to the 2011 plan year and future plan years. These rules require changes to Schedule MB and Schedule SB for the 2011 plan year.
To issue a final rule without public notice and comment, an agency must find good cause that notice and comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b). To issue a rule that is immediately effective, an agency similarly must find good cause for dispensing with the 30-day delay required by the Administrative Procedure Act (APA).
The retroactive availability of the funding relief under the Pension Relief
The Office of Management and Budget (OMB) has determined that this document does not constitute a “significant regulatory action” for purposes of Executive Order 12866. Therefore, this action has not been reviewed by OMB pursuant to the Executive Order.
In accordance with the requirements of the Paperwork Reduction Act of 1995(PRA) (44 U.S.C. 3501
Environmental Protection Agency (EPA).
Final rule.
EPA has determined that the Rome, Georgia, fine particulate (PM
EPA has established a docket for this action under Docket ID Number EPA-R04-OAR-2010-0798. All documents in the docket are listed in the
Joel Huey or Sara Waterson, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Huey may be reached by phone at (404) 562-9104 or via electronic mail at
EPA is determining that the Rome Area (comprised of Floyd County in its entirety) has attaining data for the 1997 annual PM
Other specific requirements of the determination and the rationale for EPA's action are explained in the notice of proposed rulemaking (NPR) published on December 13, 2010 (75 FR 77595). The first and second quarters of 2008 were incomplete with around 73 percent completeness each. Data
This final action, in accordance with 40 CFR 51.1004(c), suspends the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM
EPA is determining that the Rome Area has attaining data for the 1997 annual PM
This action makes a determination of attainment based on air quality, and will result in the suspension of certain federal requirements, and it will 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this 1997 PM
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 June 6, 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, Particulate matter.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(a) Determination of Attaining Data. EPA has determined, as of April 5, 2011, the Rome, Georgia, nonattainment area has attaining data for the 1997 annual PM
(b) [Reserved]
National Telecommunications and Information Administration, U.S. Department of Commerce.
Final rule.
The National Telecommunications and Information Administration (NTIA) hereby makes certain changes to its regulations, which relate to the public availability of the Manual of Regulations and Procedures for Federal Radio Frequency Management (NTIA Manual). Specifically, NTIA updates the version of the Manual of Regulations and Procedures for Federal Radio Frequency Management with which federal agencies must comply when requesting use of the radio frequency spectrum.
A reference copy of the NTIA Manual, including all revisions in effect, is available in the Office of Spectrum Management, 1401 Constitution Avenue, NW., Room 1087, Washington, DC 20230.
William Mitchell, Office of Spectrum Management, at (202) 482-8124 or
NTIA authorizes the U.S. Government's use of the radio frequency spectrum. 47 U.S.C. 902(b)(2)(A). As part of this authority, NTIA developed the NTIA Manual to provide further guidance to applicable federal agencies. The NTIA Manual is the compilation of policies and procedures that govern the use of the radio frequency spectrum by the U.S. Government. Federal government agencies are required to follow these policies and procedures in their use of the spectrum.
Part 300 of title 47 of the Code of Federal Regulations provides information about the process by which NTIA regularly revises the NTIA Manual and makes public this document and all revisions. Federal agencies are required to comply with the specifications in the NTIA Manual when requesting frequency assignments for use of the radio frequency spectrum.
This rule updates section 300.1(b) of title 47 of the Code of Federal Regulations to specify the version of the NTIA Manual with which federal agencies must comply when requesting frequency assignments for use of the radio frequency spectrum. In particular, this rule amends section 300.1(b) by replacing “May 2010” with “September 2010.”
The NTIA Manual is scheduled for revision in January, May, and September of each year and is submitted to the Director of the Federal Register for Incorporation by Reference approval. The Director of the Federal Register approved this incorporation by reference in accordance with 5 U.S.C. 552(a) and part 51 of title 1 of the Code of Federal Regulations. The NTIA Manual is available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, by referring to Catalog Number 903-008-00000-8. A reference copy of the NTIA Manual, including all revisions in effect, is available in the Office of Spectrum Management, 1401 Constitution Avenue, NW., Room 1087, Washington, DC 20230, or call William Mitchell on (202) 482-8124, and available online at
This action does not contain collection of information requirements subject to the Paperwork Reduction Act (PRA). Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the PRA, unless that collection displays a currently valid OMB Control Number.
This rule has been determined to be not significant for purposes of Executive Order 12866.
NTIA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment as it is unnecessary. This action amends the regulations to include the date of the most current version of the NTIA Manual. These changes do not impact the rights or obligations of the public. The NTIA Manual applies only to Federal agencies. Because these changes impact only federal agencies, NTIA finds it unnecessary to provide for the notice and comment requirements of 5 U.S.C. 553. NTIA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the reasons provided above. Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
This rule does not contain policies having federalism implications as that term is defined in EO 13132.
Incorporation by reference, Radio.
For the reasons set forth in the preamble, NTIA amends title 47, part 300 as follows:
47 U.S.C. 901
(b) The Federal agencies shall comply with the requirements set forth in the January 2008 edition of the NTIA Manual, as revised through September 2010, which is incorporated by reference with approval of the Director, Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
Under this final rule, NMFS requires the use of “weak hooks” in the Gulf of Mexico (GOM) pelagic longline (PLL) fishery. A weak hook is a circle hook that meets NMFS' current size and offset restrictions for the GOM PLL fishery, but is constructed of round wire stock that is thinner-gauge than the circle hooks currently used and is no larger than 3.65 mm in diameter. Weak hooks can allow incidentally hooked bluefin tuna (BFT) to escape capture because the hooks are more likely to straighten when a large fish is hooked. Requiring weak hooks in the GOM will reduce bycatch of BFT; allow the long-term beneficial socio-economic benefits of normal operation of directed fisheries in the GOM with minimal short-term negative socio-economic impacts; and have both short- and long-term beneficial impacts on the stock status of Atlantic BFT, an overfished species. This action affects commercial fishermen using PLL gear to fish for Atlantic Highly Migratory Species (HMS) in the GOM.
This final action will become effective on May 5, 2011.
Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910. Copies of the supporting documents—including the Environmental Assessment (EA), Regulatory Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), small entity compliance guide, and the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP)—are available from the HMS Web site at
Dianne Stephan at 978-281-9260 or Randy Blankinship at 727-824-5399.
Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Conventions 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
On January 13, 2011, NMFS published a proposed rule (76 FR 2313) to require the use of “weak hooks” by PLL vessels fishing in the GOM. A weak hook is a circle hook that meets NMFS' current size and offset restrictions but is constructed of round wire stock that is thinner-gauge and is no larger than 3.65 mm in diameter than the circle hooks currently used in the PLL fishery. This final rule finalizes the provisions proposed in the January 13, 2011, rule. The purpose of this action is to reduce PLL catch of Atlantic BFT in the GOM, which is the only known BFT spawning area for the western Atlantic stock of BFT, as early in the 2011 BFT spawning season as possible. Bluefin tuna spawning season begins in early April each year. This action is consistent with the advice of the ICCAT Standing Committee for Research and Statistics (SCRS) that ICCAT may wish to protect the strong 2003 year class until it reaches maturity and can contribute to spawning. The purpose is also to allow directed fishing for other species to continue within allocated BFT subquota limits. This measure is consistent with the 2006 Consolidated HMS FMP and ICCAT Recommendation 10-03 (supplemental recommendation by ICCAT concerning the western BFT rebuilding program).
Since 2007, NMFS has conducted research on weak hooks used on PLL vessels operating in the GOM to determine if their use can reduce the incidental catch of large BFT during directed PLL fishing for other species. Research data show that the use of a weak hook can significantly reduce the amount of BFT caught incidentally by PLL vessels in the GOM. Weak hooks can allow incidentally hooked BFT to escape capture because the hooks are more likely to straighten when a large fish is hooked, thus releasing the fish.
Due in part to this research, this action finalizes the requirement to use weak hooks in the Atlantic HMS PLL fishery in the GOM. This action will be effective on May 5, 2011 to ensure implementation happens as early in the 2011 BFT spawning season as possible. Implementation of weak hooks in the GOM PLL fishery during spring 2011 is important because the strong 2003 year class is beginning to enter adulthood, and it is likely that some of them will begin to spawn in the GOM this spring. Also, reducing the incidental BFT catch in the GOM may enable the PLL fishery to continue to participate in directed fisheries (e.g., yellowfin tuna (YFT) and swordfish) year-round with less risk of fishery interruption due to insufficient BFT subquota availability in the Longline Category.
NMFS considered three alternatives regarding the GOM PLL fishery. Alternative one would maintain the status quo, thus continuing existing regulations in the GOM PLL fishery. Alternative two would require all PLL vessels fishing in the GOM to use weak hooks. Alternative three would implement additional time/area closures in the GOM to protect spawning BFT. The proposed rule contained details regarding the alternatives considered and a brief summary of the recent management history. Those details are not repeated here.
During the proposed rule stage, NMFS received more than 57,000 written comments from non-governmental organizations, fishermen, dealers, and other interested parties on the proposed rule. Mass public comment campaigns contributed to the high number of comments received. NMFS also heard numerous comments from constituents who attended the three public hearings and an operator-assisted Atlantic HMS Advisory Panel conference call, which was open to the public. A summary of the comments received on the proposed rule during the public comment period is provided below with NMFS' response. All written comments submitted during the comment period can be found at
Research data showed a higher catch rate of YFT with the experimental hook in the late summer months of July, August, and September when compared to the spring and early summer months of March, April, May, and June. Because the experiment focused on collecting data during the BFT spawning season, the majority of data was collected during March-June. Although it is unknown why YFT catch rates were higher in the late summer months after BFT spawning season, if more data had been collected after the BFT spawning period, NMFS believes it likely that the YFT reduction rate would have been less than what was observed (i.e., the amount of YFT caught with the weak hook may not have decreased as much as the overall study showed). Thus the potential economic impact due to decreases in YFT catch may actually be less than described in the proposed rule.
Seasonal application of the weak hook requirement would increase the difficulty of enforcing the rule's requirement for vessels in the GOM with PLL gear on board to possess, use, and deploy only weak hooks. This is because vessels on trips spanning the beginning or end of the period of time during which weak hooks are required might not have removed all of the hooks with wire greater than 3.65 mm in diameter from their vessels, thus possessing both hooks on board. Requiring weak hooks year-round reduces such enforcement concerns because no other type of circle hook would be allowed on vessels fishing with PLL gear in the GOM. There would also be some negative economic impacts to fishermen if standard hooks are allowed to be used outside of BFT spawning season due to higher costs and lost fishing time due to re-rigging of fishing gear.
As described in the response to comment 3 above, research data showed a higher catch rate of YFT with the experimental hook in the late summer months of July, August, and September when compared to the spring and early summer months of March, April, May, and June. Because the experiment focused on collecting data during the BFT spawning season, the majority of data was collected during March-June. If more data had been collected after the BFT spawning period, NMFS believes it likely that the YFT catch reduction rate would have been less than what was observed and the potential economic impact due to decreases in YFT catch could be less than described in the proposed rule. NMFS gear researchers have found that fishermen participating in research tend to work through a learning curve with new technology and generally improve their performance with a particular gear over time. A voucher program to assist fishermen in the GOM with the purchase of an initial
During experimental PLL fishery data collection conducted in the Northeast Distant gear restricted area and GOM in 2004, NMFS collected data with the currently required standard circle hooks that showed reduced catches of swordfish and YFT with 18/0 circle hooks compared to 16/0 circle hooks on both squid and sardine baits. The evaluation did not include BFT. While these results do not directly answer the public comment about how 18/0 circle hooks constructed of thinner wire might perform for reducing BFT catch, they provide some insight to show that currently required standard 18/0 hooks may reduce swordfish retention.
NMFS disagrees that a sunset provision should be implemented for this final action because such a provision would guarantee that NMFS must take action to continue the weak hook requirement. Instead, NMFS may conduct subsequent rulemaking, if necessary, in the future to address the need for modified or additional management measures.
As described in the response to Comment 3 above, research data showed a higher catch rate of YFT with the experimental hook in the late summer months of July, August, and September when compared to the spring and early summer months of March, April, May, and June. Because the experiment focused on collecting data during the BFT spawning season, the majority of data was collected during March-June. If more data had been collected after the BFT spawning period, it is likely that
Due to misidentification of roundscale spearfish as white marlin, the total international white marlin catch also includes some roundscale spearfish and, as such, indicates that any potential increase in roundscale spearfish that might occur in the GOM PLL fishery as a result of this final action should be very small in relation. In addition, NMFS already has comprehensive regulations in place to conserve these species in its domestic fisheries. Under current regulations, PLL vessels are not allowed to retain white marlin/roundscale spearfish, and any that are captured must be released alive or discarded if dead. Additionally, PLL vessels are currently required to possess and use protected species safe handling and release gears and techniques that aid in releasing hooked animals, including white marlin, and maximize post-release survival without removing the fish from the water. Most white marlin/roundscale spearfish that are hooked are released alive.
NMFS would continue research with weak hook technology and closely monitor white marlin and roundscale spearfish catch through observer coverage in the fishery. Should the increased catches of white marlin and roundscale spearfish continue, NMFS would investigate potential mitigation measures that might be implemented if necessary to reduce the catches and/or reduce the bycatch mortality associated with the catches. The current research does not show a statistically significant increase in bycatch; therefore, it is not clear that mitigation measures would be appropriate at this time. Neither does the research indicate which measures would be effective to address any potential statistically significant white marlin and roundscale spearfish increase in catch. If additional research shows a statistically significant increase in such bycatch, possible measures could include adopting a seasonal application of the weak hook, modification or removal of the weak hook requirement or other measures as necessary and appropriate. NMFS would closely monitor fleet activities and catch statistics, and consider making management measures adjustments, including use of inseason management authority, should the data warrant.
Yellowfin tuna are managed internationally by ICCAT, which has adopted a limit on effective fishing effort, but not issued a TAC or individual country quotas. According to the latest ICCAT SCRS YFT stock assessment (2008), the YFT population is not considered to be overfished and overfishing is not occurring. If the catch of YFT in the GOM increases as a result of weak hook use, negative impacts on the YFT population are expected to be minor when compared to the total western Atlantic longline catch. The United States GOM longline catch is 7.7 percent of the total western Atlantic longline catch.
NMFS believes that the FEIS for the 2006 Consolidated HMS FMP and the 2004 BiOp for the PLL fishery remain applicable and support this final action. Despite recent significant events that have occurred in the GOM, the 2006 Consolidated HMS FMP closure analysis still reflects impacts that are likely to occur with the time/area closure alternatives, particularly when considering redistribution of fishing effort. When redistribution of effort was considered, all time/area closures in the 2006 analysis resulted in an increase in bycatch for some species, including BFT. This final action is not expected to change fishing effort or behavior beyond that already analyzed in the 2001 HMS and 2004 PLL Biological Opinions (BiOps) regarding interactions with endangered species. This action is not expected to significantly alter current fishing practices or bycatch mortality rates from the level analyzed in the Consolidated HMS FMP, and therefore should not have adverse impacts on protected species, or have any further impacts on endangered species, listed marine mammals, or critical habitat beyond those considered in the 2001 and 2004 BiOps.
The 2006 Consolidated HMS FMP established criteria for considering the implementation of new time/area closures or modification to existing time/area closures. It is not feasible to conduct extensive, new analysis per these criteria and to meet the objectives of this action (
With implementation of this final action, NMFS is precautionary in its approach because it is acting consistently with SCRS advice to protect the 2003 BFT year class as it matures and begins to contribute to spawning. In addition, implementation of weak hooks in the GOM PLL fishery is expected to reduce the catch of BFT in that fishery by 56.5 percent, which will reduce mortality of spawning BFT (both the 2003 and other year classes) on their spawning grounds. This will promote the increase of spawning biomass, the likelihood of successful spawning, and further rebuilding of the western BFT stock.
A minor change to the definition of round wire stock at 50 CFR 635.2 has been made to provide further clarification. A minor change to the paragraph at § 635.71(a)(54) that deals with prohibitions has been made to clarify the cross referenced paragraph.
The NMFS AA has determined that this final action is consistent with the Magnuson-Stevens Act, 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
In compliance with section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) for this final rule, which analyzed the impacts of requiring the use of weak hooks in the GOM PLL fishery. The FRFA analyzes the anticipated economic impacts of the final action and any significant economic impacts on small entities. A summary of the FRFA is below. The full FRFA and analysis of social and economic impacts are available from NMFS (
In compliance with section 604(a)(1) of the Regulatory Flexibility Act, the purpose of this final rulemaking is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to further BFT stock recovery by increasing live releases of incidentally caught BFT by providing a new gear technology for PLL vessels to continue routine fishing operations in the GOM.
Section 604(a)(2) of the Regulatory Flexibility Act requires NMFS to summarize significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis (IRFA), a summary of NMFS' assessment of such issues, and a statement of any changes made as a result of the comments. The IRFA was included as part of the draft EA and was summarized in the proposed rule. NMFS did not receive any comments specific to the IRFA; however, NMFS did receive comments related to the overall economic impacts of the proposed rule. Those comments and NMFS' responses to them are mentioned above in the preamble for this rule. Particularly relevant economic comments are 1, 3, 4, 5, 7, 9, and 15.
When developing this action, NMFS considered different ways to reduce the regulatory burden on and provide flexibility to the regulated community, consistent with the recent Presidential Memorandum on Regulatory Flexibility, Small Business, and Job Creation (January 18, 2011). Consistent with the objectives of this rule and legal obligations, a voucher program to assist fishermen in the GOM with the purchase of an initial supply of weak hooks is being sponsored by the National Fish and Wildlife Foundation (
Section 604(a)(3) requires Federal agencies to provide an estimate of the number of small entities to which the rule would apply. NMFS considers all HMS permit holders to be small entities because they either had average annual receipts less than $4.0 million for fish-harvesting, average annual receipts less than $6.5 million for charter/party boats, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. These are the Small Business Administration (SBA) size standards for defining a small versus large business entity in this industry.
The GOM PLL fishery is comprised of fishermen who hold an Atlantic Tunas Longline permit, a Swordfish Directed or Incidental permit, and a Shark Directed or Incidental permit and the related industries including processors, bait houses, and equipment suppliers, all of which NMFS considers to be small entities according to the size standards set by the SBA. The final rule would apply to PLL vessels that fish in the GOM. As of October 2010, there were 248 Atlantic tuna longline limited access permit holders. Of these, 136 were registered in states along the coast of the GOM (including all Florida vessels). However, based on logbook records from 2006 to 2009, on average, only 51 PLL vessels were actively operating in the GOM annually, with a high of 55 vessels in 2007 and a low of 47 in 2006 and 2009. During the summer of 2010, preliminary vessel monitoring system information
This final rule does not contain any new reporting or recordkeeping requirements, but would require a new compliance requirement (5 U.S.C. 604(a)(4)). Fishing vessels with PLL gear onboard will be required, at all times, in all areas of the GOM open to HMS PLL fishing, to possess onboard and/or use only circle hooks meeting current size and offset restrictions, as well as being constructed of only round wire stock that is no larger than 3.65 mm in diameter. This final rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 604(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the ATCA, 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 new regulations would duplicate, overlap, or conflict with any relevant regulations, Federal or otherwise.
Under section 604(a)(5), agencies are required to describe any alternatives to the rule which accomplish the stated objectives and which minimize any significant economic impacts. Economic impacts are discussed below and in the Environmental Assessment for the action. Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives. 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 rule, consistent with legal obligations, NMFS cannot exempt small entities or change the reporting requirements only for small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting requirements (category two above). Fishing vessels with PLL gear onboard will be required, at all times, in all areas of the GOM open to HMS PLL fishing, to possess onboard and use only circle hooks meeting current size and offset restrictions as well as being constructed of only round wire stock that is no larger than 3.65 mm in diameter. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act.
NMFS considered and analyzed three main alternatives for this rule. The first alternative was the status quo, no action alternative. This alternative would maintain existing hook and bait requirements in the Atlantic PLL fishery in the GOM. The second alternative would require all PLL vessels fishing in the GOM to use weak hooks and is the preferred alternative. The third alternative considered establishing additional time/area closures in the GOM. Under this alternative, an area of the GOM would be closed to PLL fishing and could extend over the entire GOM or a subarea. Temporal extents of a closure could be timed to the spawning season for BFT in the GOM, April to mid-June, or for shorter or longer time frames (
Alternative 1, the status quo, no action alternative would not result in any additional economic impacts to small entities in the short-term. NMFS does not anticipate a significant change in landings, ex-vessel prices, or operating costs relative to the “status quo” for small entities under this alternative. However, adverse economic impacts in the medium and long-term could result if no action is taken to address the incidental catch of BFT in the GOM PLL fishery. Adverse economic impacts could occur if the Longline Category subquota for BFT is exceeded and a partial or total closure of the fishery is implemented or other management measures are taken in directed BFT fisheries to allow for dead discards of BFT to be accounted for within the U.S. quota.
The preferred alternative, Alternative 2, would require vessels with PLL gear onboard, at all times, in all areas of the GOM open to PLL fishing, to possess onboard and use only circle hooks meeting current size and offset restrictions as well as being constructed of only round wire stock that is no larger than 3.65 mm in diameter. This alternative would result in some minor increases in equipment costs for the new hooks, would likely impact vessel operations, and would also potentially impact catch rates and thus potentially reduce vessel revenues.
Alternative 2 would result in moderate positive social and economic benefits if this measure is able to reduce the bycatch of BFT in the GOM sufficiently to allow the PLL fishery to continue operating in the GOM. However, there would likely be some increased economic costs associated with switching to the weak hook.
This alternative would result in some minor increases in equipment costs associated with acquiring the new weak hooks. Direct cost of purchasing weak hooks is anticipated to increase expenses by $.02 per hook. An informal telephone survey of hook suppliers provides a price of approximately $0.34 per hook for 16/0 commercial grade circle hooks and approximately $0.36 per hook for 16/0 circle hooks constructed of 3.65 mm diameter round wire stock. Assuming that an average of 1,600 hooks per vessel are needed initially to equip vessels with enough required hooks for one trip, the compliance cost, on a per vessel basis, would be approximately $576.
Hook replacement rates are anticipated to increase with use of the weak hook. Researchers during the GOM PLL BFT mitigation research estimated that requiring the weak hook would result in an increase in the rate of hook replacement by 4.41 hooks per 1,000 hooks over the current
Alternative 2 would also potentially impact vessel catch rates, and thus potentially reduce vessel revenues. Based on the GOM PLL BFT mitigation research results, catch rates for several commercially important species were found to be lower using the new weak hooks versus the standard 16/0 circle hooks. The researchers found a statistically significant (at the 5 percent level) reduction in the total catch of BFT and wahoo when weak hooks were used compared to conventional circle hooks. The total catch of BFT was reduced 56.5 percent when weak hooks were used in the experiment. This reduction includes both discards and BFT retained for sale. Based on observer reports of the number of BFT discarded versus retained in the GOM, the researchers estimate that the experimental results indicate that the use of weak hooks would result in approximately a 14 percent reduction in BFT retained for sale given the BFT incidental retention limits. The total catch of wahoo using the weak hook was reduced by 26.6 percent.
The research also observed reduction in the number of YFT and swordfish retained for sale. While these results were not statistically significant at the 5 percent level, the reductions in YFT and swordfish retained did have p-values ≤ 0.15. Weak hooks in the experiment resulted in a 7 percent reduction in YFT retained for sale and 41.2 percent reduction in swordfish retained for sale. No other commercially targeted species observed during the research exhibited catch rate differences between weak hooks and conventional circle hooks with p-values of ≤ 0.15. Therefore, given that YFT is often the target catch for PLL trip in the GOM and the heterogeneous nature of fishing vessel operations, this analysis conservatively includes the observed reductions in YFT and swordfish. In addition, NMFS also ran the analysis with just BFT and wahoo which exhibited statistically significant differences in catch at the 5 percent level to help illustrate the range of possible outcomes.
Using vessel logbook catch data, NMFS translated the reductions in catch observed in the research experiment into potential fishery revenue impacts that may result from requiring the use of weak hooks in the GOM. The calculations are detailed in the EA for this final rule which is available on request. Based on the research results, the estimated per trip reduction in revenues that would potentially result from requiring the use of weak hooks in the GOM is approximately $2,265.
Based on HMS logbook reports from 2006 to 2009, the average number of PLL trips taken per vessel per year in the GOM is 9.7. Multiplying 9.7 trips per vessel by the estimated $2,265 per trip reduction in catch revenues (when including reductions for BFT, YFT, wahoo, and swordfish) results in an estimated reduction of $21,974 in commercial fishing revenues per vessel per year in the GOM resulting from switching to weak hooks. Alternatively, if the analysis only considers the statistically significant reductions in catch at the 5 percent level (only including reductions for BFT and wahoo which equals $139 less per trip), as used in the research study, the estimated reduction in annual catch revenues per vessel in the GOM for Alternative 2 would be $1,351 (9.7 trips × $139). This lower estimate may also represent the potential improvements in catch rates that may occur over time as fishermen adapt to the new weak hook technology. NMFS' analysis of weak hook research data after the publication of the proposed rule found a seasonal difference in the catch of YFT. Because the experiment focused on collecting data during the BFT spawning season, the majority of data was collected during March-June. If more data had been collected after the BFT spawning period, it is likely that the YFT reduction rate would have been less than what was observed, thus the potential economic impact due to decreases in YFT catch may be less than described above. NMFS does not foresee that the national net benefits and costs would change significantly in the long term as a result of implementation of the final action. In response to comment, NMFS also considered a modified version of alternative 2 that would apply the weak hook requirement seasonally. However, NMFS did not prefer this approach because BFT are also present in the GOM outside of the spawning season in lower numbers and seasonal application of the weak hook requirement would increase the difficulty of enforcing the weak hook requirement.
Under Alternative 3, which considers additional time/area closures in the GOM, some fishermen could be expected to shift effort to fishing areas outside the GOM and there could be changes in the distribution of the fleet with some fishermen possibly exiting the fishery. Predicting fishermen's behavior is difficult, especially as some factors that may determine whether to stay in the fishery, relocate, or leave the fishery are beyond NMFS' control (fuel prices, infrastructure, hurricanes, etc.). While some fishermen will continue to fish in the remaining open areas of the Atlantic, Caribbean, and GOM, others may be forced to leave the fishery entirely, such as selling their permits and going out of business, as a result of the closure. Changes in fishing patterns may result in fishermen having to travel greater distances to reach more favorable grounds, which would likely result in increased fuel, bait, ice, and crew costs. While there may be a potential increase in travel, this is unlikely to raise significant safety concerns because the fleet is highly mobile. The potential shift in fishing grounds, should it occur, could result in fishermen selecting new ports for offloading. This would likely have negative social and economic consequences for traditional ports of offloading, including processors, dealers, and supply houses, and positive social and economic consequences for any new selected ports of offloading. NMFS conducted a detailed, comprehensive socio-economic analysis for the time/area alternatives considered in the 2006 Consolidated HMS FMP and found that the economic impacts of each of the closures considered may be substantial, ranging in losses of up to several million dollars annually, depending upon the closure and displacement of a significant number of fishing vessels. Since the data analysis conducted in the 2006 Consolidated HMS FMP, several events have affected the GOM including Hurricane Katrina, Hurricane Rita, and the DWH/BP oil spill among other events. While social and economic impacts have likely occurred due to these events, NMFS believes the closure analysis in 2006 still reflects the substantial social and economic impacts that would be likely to occur under the time/area closures analyzed. Additionally, Alternative 3 does not meet all of the objectives of this final rule because it does not rapidly enhance BFT stock rebuilding by increasing BFT spawning potential and subsequent recruitment into the fishery (
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Copies of the compliance guide for this final rule is available (see
The National Fish and Wildlife Foundation (an independent 501(c)(3) non-profit that preserves and restores our nation's native wildlife species and habitats) is conducting a Weak Hook Voucher Program through which Atlantic Tuna Longline permit holders who use PLL gear in the GOM may obtain an initial supply of weak hooks. The National Fish and Wildlife Foundation will mail vouchers to Atlantic Tuna Longline permit holders that used PLL gear in the GOM in 2009-2010. Atlantic Tuna Longline permit holders that have not received the National Fish and Wildlife Foundation voucher in the mail by April 12, 2011, and are planning to fish with PLL gear in the GOM this year, may request a voucher by contacting Mary Beth Charles with the National Fish and Wildlife Foundation at 202-595-2445 or
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:
16 U.S.C. 971
(c) * * *
(5) * * *
(iii) * * *
(C) * * *
(
(
(a) * * *
(54) Possess, use, or deploy, in the Gulf of Mexico, any circle hook, other than as described at § 635.21(c). Vessels in the Gulf of Mexico, with pelagic gear onboard, are prohibited from possessing, using, or deploying circle hooks that are constructed of round wire stock which is larger than 3.65 mm in diameter (See: § 635.21(c)(5)(iii)(C)(
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment of landing limits.
NMFS increases the possession limit for George's Bank (GB) cod, Cape Cod (CC)/Gulf of Maine (GOM) yellowtail flounder, and Southern New England (SNE)/Mid-Atlantic (MA) yellowtail flounder, and reduces the trip limit GOM cod and GOM winter flounder for Northeast (NE) multispecies common pool vessels for the 2010 fishing year (FY), through April 30, 2011. This action is authorized under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, and by the regulations implementing Amendment 16 and Framework Adjustment 44 to the NE Multispecies Fishery Management Plan (FMP). The action is intended to facilitate the harvest of GB cod, CC/GOM yellowtail flounder, and SNE/MA yellowtail to allow the total catch of these stocks to approach the pertinent common pool sub-annual catch limits (sub-ACLs). This action is also intended to reduce catch rates of GOM cod and GOM winter flounder by NE common pool vessels and minimize additional overharvest of these stocks relative to the pertinent common pool sub-ACLs.
The trip limit increases for GB cod and SNE/MA and CC/GOM yellowtail flounder are effective March 31, 2011, through April 30, 2011. The trip limits reductions for GOM cod and GOM winter flounder are effective April 5, 2011, through April 30, 2011.
Sarah Heil, Fishery Policy Analyst, (978) 281-9257, fax (978) 281-9135.
Regulations governing the NE multispecies fishery are found at 50 CFR 648 subpart F. The regulations at § 648.86(o) authorize the NE Regional Administrator (RA) to adjust the possession limits for common pool vessels in order to optimize the harvest of NE regulated multispecies by preventing the overharvest or underharvest of the pertinent common pool sub-ACLs. For FY 2010, the common pool sub-ACLs for GB cod, GOM cod, CC/GOM yellowtail flounder, SNE/MA yellowtail flounder, and GOM winter flounder are: 128 mt (282,192 lb); 240 mt (529,109 lb); 50 mt (110,231 lb); 75 mt (165,347 lb), and 25 mt (55,116 lb), respectively. The current possession limit for GB cod is 2,000 lb (907.2 kg) per day-at-sea (DAS) up to 20,000 lb (9,071.8 kg) per trip, and the current possession limit for CC/GOM yellowtail flounder and SNE/MA yellowtail flounder is 250 lb (113.4 kg) per DAS up to 1,500 lb (680.4 kg) per trip. The current possession limits for GOM cod and GOM winter flounder are: 100 lb (45.4 kg) per DAS up to 1,000 lb (453.6 kg) per trip and 250 lb (113.4 kg) per trip, respectively.
The initial limit for GOM cod set by Amendment 16 was 800 lb (362.9 kg) per DAS up to 4,000 lb (1,814.5 kg) per trip. An inseason action published in the
As of March 24, 2011, the best available catch information, including Vessel Monitoring System (VMS) reports and dealer reports, indicated that approximately 44 percent of the GB cod, 67 percent of the CC/GOM yellowtail flounder, 24 percent of the SNE/MA yellowtail flounder, 102 percent of the GOM cod, and 100 percent of the GOM winter flounder common pool sub-ACLs has been harvested. Based on this information, the RA determined that additional measures are needed to facilitate the harvest of GB cod, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder to help allow the total catch of these stocks by common pool vessels to approach the pertinent common pool sub-ACLs. Conversely, the RA determined that additional measures are needed to slow catch rates of GOM cod and GOM winter flounder by common pool vessels. Therefore, the trip limit for GB cod is increased to 3,000 lb (1,360.8 kg) per DAS up to 30,000 lb (13,607.8 kg) per trip, and the trip limit for CC/GOM yellowtail flounder and SNE/MA yellowtail flounder is increased to 750 lb (340.2 kg) per DAS up to 3,000 lb (1,360.8 kg) per trip for common pool vessels, effective March 31, 2011 through April 30, 2011. In addition, the trip limit for GOM cod is reduced to 100 lb (45.4 kg) per trip, and the trip limit for GOM winter flounder is reduced to 100 lb (45.4 kg) per trip for common pool vessels, effective April 5, 2011, through April 30, 2011. This action does not change the current cod trip limit for vessels with a Handgear A (50 lb (22.7 kg) per trip), Handgear B (25 lb (11.3 kg) per trip), or Small Vessel Category (75 lb (34.0 kg) per trip of cod within the limit of 300 lb (136.1 kg) of cod, haddock, and yellowtail flounder combined) permit. This action does change the GOM winter flounder trip limit for vessels with a Handgear A, Handgear B, or Small Vessel Category permit to 100 lb (45.4 kg) per trip). The trip limit adjustments implemented through this action are detailed in the table below. Catch will continue to be monitored through dealer-reported landings, VMS catch reports, and other available information, and if necessary, additional adjustments to common pool management measures may be made.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3) to waive prior notice and the opportunity for public comment, as well as delayed effectiveness, for this inseason adjustment because notice, comment, and a delayed effectiveness would be impracticable and contrary to the public interest. The regulations at § 648.86(o) grant the RA authority to adjust the NE multispecies possession limits for common pool vessels in order to prevent the overharvest or underharvest of the pertinent common pool sub-ACLs. This action increases the possession limit for GB cod, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder to facilitate the harvest of these stocks, as well as reduces the trip limits for GOM cod and GOM winter flounder to minimize overharvest of the common pool sub-ACLs for these stocks. Catch data upon which this action is based have only recently become available. The time necessary to provide for prior notice and comment, and delayed effectiveness for this action, would prevent NMFS from implementing the necessary possession limit adjustments in a timely manner. A resulting delay in the liberalization of possession limits would unnecessarily restrain catch rates for GB cod, CC/GOM yellowtail flounder, and SNE/MA yellowtail flounder, thereby preventing the total catch of these stocks to approach the pertinent common pool
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the B season allowance of the 2011 Pacific cod allowable catch (TAC) specified for catcher vessels using trawl gear in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), April 4, 2011, through 1200 hrs, A.l.t., June 10, 2011.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The B season allowance of the 2011 Pacific cod TAC allocated to catcher vessels using trawl gear in the BSAI is 4,949 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, has determined that the B season allowance of the 2011 Pacific cod TAC allocated to catcher vessels using trawl gear in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,449 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 30, 2011.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for the products listed above. That NPRM proposed to require installing new panel assemblies in the main equipment center or on the forward cargo compartment sidewall and removing certain relays from some panels in the main equipment center. That NPRM also proposed to require revising the maintenance program to incorporate Airworthiness Limitations (AWLs) No. 28-AWL-27 and No. 28-AWL-28. That NPRM was prompted by fuel system reviews conducted by the manufacturer. For certain airplanes, this action revises that NPRM by proposing to require prior or concurrent installation of a second fuel crossfeed valve. This action also revises that NPRM by proposing an alternative location for the installation of the new panel assemblies for airplanes that have the optional water system drain plumbing and changing the interconnecting wiring between the P141 panel and the P36 and P37 panels. For airplanes with a deactivated center fuel tank, this action revises that NPRM by proposing an alternative functional test for the left and right override/jettison pumps. We are proposing this supplemental NPRM to prevent possible sources of ignition in a fuel tank caused by electrical fault or uncommanded dry operation of the main tank boost pumps and center auxiliary tank override and jettison pumps. An ignition source in the fuel tank could result in a fire or an explosion and consequent loss of the airplane. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by May 2, 2011.
You may send comments by any of the following methods:
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For service information Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Elias Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6478; fax (425) 917-6590; e-mail
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes. That NPRM published in the
Since we issued the original NPRM, the manufacturer has notified us that certain airplanes affected by the original NPRM have the optional water system drain plumbing. This optional system was not addressed in Boeing Alert Service Bulletin 767-28A0085, dated
We have revised the supplemental NPRM to refer to Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010.
Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, specifies the following changes:
• For airplanes equipped with the optional water system drain plumbing: An alternate location is specified for the installation of the P141 panel. The interconnecting wiring between the P141 panel and the P36 and P37 panels is also changed due to the relocation of the P141 panel.
• For airplanes with a deactivated center fuel tank (alternately referred to as the center auxiliary fuel tank): An alternative functional test is added for the left and right override/jettison pumps.
• For airplanes having line positions 1 through 430: Installation of a second fuel crossfeed valve is added as a prior or concurrent action. This installation is specified to be done in accordance with Boeing Service Bulletin 767-28-0034, Revision 3, dated March 14, 1996.
• Additional error corrections and clarifications, including clarifications of wiring configurations and routing, and increased work-hours for airplanes with the optional water system drain plumbing.
We have added a new paragraph (d) to this supplemental NPRM to provide the Air Transport Association (ATA) of America subject code 28, Fuel. This code is added to make this supplemental NPRM parallel with other new AD actions. We have reidentified subsequent paragraphs accordingly.
We have included the cost of the prior/concurrent installation of the second crossfeed valve.
We have also removed Table 1 and fully cited the service information that was specified in the table. We reidentified the subsequent table.
As noted above, we have added certain paragraphs to the supplemental NPRM and, since we issued the original NPRM, the format has been revised, and certain other paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed from the original NPRM in this supplemental NPRM, as listed in the table titled “Revised Paragraph Identifiers.” In the disposition of comments we will refer to the relevant paragraph of the original NPRM or the supplemental NPRM, depending on context.
We gave the public the opportunity to comment on the original NPRM. The following presents the comments received on the NPRM and the FAA's response to each comment.
Japan Airlines (JAL) requested that we revise Table 1 in paragraph (g) of the original NPRM to include the original versions of two service bulletins as sources of service information. JAL pointed out that these two service bulletins are referred to in AD 2009-16-06, amendment 39-15989, which is the subject of paragraph (g) of the original NPRM.
We agree with JAL's request. We have included a new Table 2 in this supplemental NPRM to include Boeing Alert Service Bulletin 767-28A0083, dated May 3, 2006; and Boeing Alert Service Bulletin 767-28A0084, dated May 3, 2006. Both of these service bulletins are acceptable for compliance with the requirements of AD 2009-16-06. Although Boeing Service Bulletin 767-28A0083, dated May 3, 2006, is identified in Paragraph 1.B., “Concurrent Requirements,” of Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, Boeing Alert Service Bulletin 767-28A0084, dated May 3, 2006, is not listed in Paragraph 1.B. of Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010. We have coordinated this difference with Boeing.
JAL, Continental Airlines (CAL), United Airlines (UAL), and UPS pointed out that although paragraph (i) of the original NPRM proposed the option of incorporating paragraph (g)(2) of AD 2008-11-01, amendment 39-15523 (73 FR 29414, May 21, 2008), that AD has since been revised to AD 2008-11-01 R1, amendment 39-16145 (74 FR 68515, December 28, 2009).
We agree with the requests to refer to AD 2008-11-01 R1, amendment 39-16145. We issued the revision to AD 2008-11-01 to clarify the AD's intended effect on spares and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness. The actions required by AD 2008-11-01 R1 are consistent with paragraph (j) of the original NPRM, which states that “after accomplishing the actions specified in paragraph (i) of this AD, no alternative inspections or inspection intervals may be used.” We have changed paragraph (l) of this supplemental NPRM to refer to AD 2008-11-01, amendment 39-15523, and AD 2008-11-01 R1, amendment 39-16145.
Several commenters requested clarification of the intent of the “Revision March 2009” date of Boeing 767 Maintenance Planning Data (MPD) Document, Section 9, D622T001-9, Revision March 2009, referred to in the original NPRM.
• JAL stated that the revision should be Revision April 2009 or Revision August 2009 because it does not appear that Revision March 2009 was issued.
• CAL believed that the date should be Revision May 2009.
• UAL asked if the intent of the proposed rule is to override the requirements of AD 2008-11-01 R1 in that only Revision May 2009 may be used for compliance. UAL stated that it believed that operators should be allowed to use either Revision April 2008 or Revision May 2009, and that paragraph (h) of the original NPRM should be revised accordingly.
• UPS pointed out that as an optional action in AD 2008-11-01 R1, AWLs No.
We agree that the date of the MPD document needs to be clarified. AWLs No. 28-AWL-27 and No. 28-AWL-28 were added to Boeing 767 Maintenance Planning Data (MPD) Document, Section 9, D622T001-9, in Revision October 2007. None of the revisions of this MPD document since that time have changed the text of AWLs No. 28-AWL-27 and No. 28-AWL-28. Therefore, either of the revisions mentioned in AD 2008-11-01 R1, Revision April 2008 or Revision May 2009, may be used to update the maintenance program to incorporate AWLs No. 28-AWL-27 and No. 28-AWL-28. We have revised paragraph (k) of this supplemental NPRM to specify that Revision April 2008, Revision March 2009, or Revision May 2009, may be used.
CAL had no technical objection to the original NPRM, but pointed out that although the compliance time for accomplishing the actions proposed in the original NPRM is 60 months, the concurrent requirements from AD 2009-16-06, which is specified as terminating action for paragraph (g) of the original NPRM, have a compliance time of 36 months. CAL stated that doing the actions in AD 2009-16-06 requires extensive airplane modifications and material allocations that can only be accomplished during a heavy check or special maintenance hold. Therefore, CAL requested that we consider a minor extension to the compliance time in AD 2009-16-06.
We disagree with approving an extension to the compliance time for AD 2009-16-06 through this supplemental NPRM. However, we will consider requests for an adjustment to the compliance time under the provisions of paragraph (o) of AD 2009-16-06 if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed the supplemental NPRM in this regard.
Boeing requested that we consider removing paragraph (g) from the original NPRM. Paragraph (g) of the original NPRM is the concurrent installation of an automatic shutoff system for the auxiliary fuel tank pump. Boeing explained that the safety conditions and fixes associated with references to Boeing Service Bulletin 767-28A0083, Revision 2, dated February 12, 2009; or Boeing Service Bulletin 767-28A0084, Revision 1, dated April 26, 2007; are already mandated by AD 2009-16-06, and by the instructions in paragraph (f) of the original NPRM with implementation of Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010. Boeing stated that future changes to paragraph (g) of the original NPRM would require alternative methods of compliance (AMOCs) and create added paperwork for Boeing, the airlines, and the FAA.
We disagree with the request to remove paragraph (g) of the original NPRM. Accomplishing the actions proposed in the original NPRM for the center fuel tank pump system depend on the configuration of the center fuel tank pump system of the affected airplanes as modified by the accomplishment of the actions specified in the service information identified in paragraph (g) of the original NPRM. Therefore, airplanes in the effectivity of the service bulletins identified in Table 1 of this supplemental NPRM must have the actions done prior to or concurrently with the actions proposed in paragraph (g) of this supplemental NPRM. If we remove paragraph (i) of this supplemental NPRM, there is no assurance that the center fuel tank pump system for the affected airplanes would be in the correct configuration during the accomplishment of the actions proposed in paragraph (g) of this supplemental NPRM.
Should the service information specified in paragraph (i) of this supplemental NPRM change in a way that affects the ground fault interrupt (GFI) relays and uncommanded-on protective feature, under the provisions of paragraph (o) of this supplemental NPRM, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the design change would provide an acceptable level of safety. We have not changed this supplemental NPRM in this regard.
All Nippon Airways (ANA) requested that we remove the proposed requirements of paragraphs (h), (i), and (j) of the original NPRM, which specify incorporating AWLs No. 28-AWL-27 and No. 28-AWL-28 into the maintenance program. ANA stated that these AWLs have already been introduced in the airline maintenance program as required by AD 2008-11-01 R1.
We disagree with the request to remove paragraphs (k), (l), and (m) of the supplemental NPRM (paragraphs (h), (i), and (j) of the original NPRM). Incorporating AWLs No. 28-AWL-27 and No. 28-AWL-28 into the maintenance program in accordance with AD 2008-11-01 R1 is an option, not a requirement. Operators may or may not decide to exercise this option. The actions proposed in paragraph (k) of this supplemental NPRM remain applicable. However, paragraph (l) of this supplemental NPRM gives credit to operators of the affected airplanes that chose the optional action; doing the optional action terminates the actions proposed in paragraph (k) of this supplemental NPRM. We have not changed this supplemental NPRM in this regard.
TDG Aerospace (TDG) requested that we revise the text of the original NPRM to reflect the construction of a typical NPRM. TDG stated that in that construction, the FAA typically discusses the unsafe condition, describes the desired corrective action, and then refers to the manufacturer's service information for approved instructions for doing the corrective action. TDG pointed out that the intent of the original NPRM is effectively masked by focusing on the “Installation of Panel Assemblies and Removal of Relays.” TDG said this suggests that the FAA intends to mandate “Installation of Panel Assemblies and Removal of Relays” as a desired corrective action for the unsafe condition identified in paragraph (d) of the original NPRM. TDG argued that the corrective action is the installation of an uncommanded-on protection system and installation of GFI relays. TDG stated that installing new panels and removing relays is simply one method of achieving the corrective action. TDG further stated that the language of the rule is important with respect to the application for AMOCs and said it would be more straightforward for
We partially agree with TDG's request for clarification. We disagree that the order of the supplemental NPRM should be revised. The unsafe condition and the intent of the proposed rule are described in the Summary and Discussion sections and paragraph (d) of the original NPRM. The heading “Installation of Panel Assemblies and Removal of Relays” is a descriptive title only and not the enforceable language of paragraph (f) of the original NPRM. However, we agree that some clarification of the P140 and P141 assemblies is necessary. These panel assemblies are preassembled modules that contain the GFI relays and the center fuel tank override/jettison pumps un-commanded ON protective features. We have included in the Summary and Discussion sections of the supplemental NPRM the words “* * * main equipment center or on the forward cargo compartment sidewall and removing certain relays from some panels in the main equipment center.” We have also revised the wording in paragraph (g) of this supplemental NPRM to reflect a similar wording.
TDG pointed out that paragraph (j) of AD 2009-16-06 provides for optional terminating action for paragraphs (f), (h), and (i) of that AD via deactivation of the center fuel tank. TDG expressed concern that operators that deactivate the center tank will not be able to do the modifications proposed in the original NPRM without prior or concurrent installation of the automatic shutoff system in accordance with the actions in proposed paragraph (g) of the original NPRM. TDG stated that requiring operators to install an automatic shutoff system on an airplane with a deactivated center tank effectively eliminates the center tank deactivation as an optional terminating action for AD 2009-16-06.
We infer from TDG's comments that it sees a conflict between the original NPRM and AD 2009-16-06, amendment 39-15989, that would invalidate certain provisions of that AD. We disagree. We note that paragraph (g) of the original NPRM proposed to require changes to all affected airplanes, whether the airplanes have an active center fuel tank (with changes made per paragraphs (f), (h), and (i) of AD 2009-16-06), or a deactivated center fuel tank (as allowed by paragraph (j) of AD 2009-16-06). Changes made per Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, can be made on airplanes in either configuration, and this service bulletin includes instructions for testing of an airplane with a deactivated center fuel tank (reference Step 3.B.29.e. of the Accomplishment Instructions of this service bulletin). If a deactivated center fuel tank is later reactivated, the requirements in paragraph (i) of AD 2009-16-06 must be done. We have not changed the supplemental NPRM in this regard.
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
This supplemental NPRM would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD will affect 416 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, part A, subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(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),
(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, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments by May 2, 2011.
(b) None.
(c) This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category; as identified in Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (o) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 28, Fuel.
(e) This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent possible sources of ignition in a fuel tank caused by electrical fault or uncommanded dry operation of the main tank boost pumps and center auxiliary tank override and jettison pumps. An ignition source in the fuel tank could result in a fire or an explosion, and consequent loss of the airplane.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) Within 60 months after the effective date of this AD, install ground fault interrupt relays (P140 and P141 panel assemblies) and all applicable parts and components in the main equipment center or in the forward cargo compartment sidewall, as applicable, and remove the fuel boost pump control relays from the P33, P36, and P37 panels, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, except as required by paragraph (h) of this AD.
(h) Although paragraph 3.B.29.e. of the Accomplishment Instructions of Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, specifies an alternative functional test of the left and right center override pumps as an option, this AD requires that test for airplanes on which the center tank is deactivated.
(i) For airplanes identified in paragraph 1.A.1. of Boeing Service Bulletin 767-28A0083, Revision 2, dated February 12, 2009; or Boeing Service Bulletin 767-28A0084, Revision 1, dated April 26, 2007: Prior or concurrently with accomplishing the action required by paragraph (g) of this AD, install an automatic shutoff system for the auxiliary fuel tank pump, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0083, Revision 2, dated February 12, 2009; or Boeing Service Bulletin 767-28A0084, Revision 1, dated April 26, 2007; as applicable. Accomplishing the requirements of AD 2009-16-06, amendment 39-15989, terminates the requirements of this paragraph.
(j) For airplanes having line positions 1 through 430: Prior or concurrently with accomplishing the action required by paragraph (g) of this AD, install a second fuel crossfeed valve, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28-0034, Revision 3, dated March 14, 1996.
(k) Concurrently with accomplishing the actions required by paragraph (g) of this AD, or within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance program by incorporating Airworthiness Limitations (AWLs) No. 28-AWL-27 and No. 28-AWL-28 of Section 9 (“AIRWORTHINESS LIMITATIONS (AWLs) AND CERTIFICATION MAINTENANCE REQUIREMENTS (CMRs)”) of the Boeing 767 Maintenance Planning Data (MPD) Document, D622T001-9, Revision April 2008; Revision March 2009; or Revision May 2009. The initial compliance time for the actions specified in AWLs No. 28-AWL-27 and No. 28-AWL-28 is within 1 year after accomplishing the installation required by paragraph (g) of this AD, or within 1 year after the effective date of this AD, whichever occurs later.
(l) Incorporating AWLs No. 28-AWL-27 and No. 28-AWL-28 into the maintenance program in accordance with paragraph (g)(2) of AD 2008-11-01, amendment 39-15523, or paragraph (g)(2) of 2008-11-01 R1, amendment 39-16145, terminates the action required by paragraph (k) of this AD.
(m) After accomplishing the actions specified in paragraph (k) of this AD, no alterative inspections or inspection intervals may be used unless the inspections or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (o) of this AD.
(n) Actions done before the effective date of this AD in accordance with the service information identified in Table 1 of this AD are acceptable for compliance with the corresponding requirements of this AD.
(o)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(p) For more information about this AD, contact Elias Natsiopoulos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6478; fax (425) 917-6590; e-mail
(q) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes the establishment a safety zone on the waters of the Newport River under the main span US 70/Morehead City—Newport River high rise bridge in Carteret County, NC. This safety zone is necessary to provide for safety of life on navigable waters during the establishment of staging for bridge maintenance. This rule will enhance the safety of the contractors performing maintenance as well as the safety vessels that plan to transit this area.
Comments and related material must be received by the Coast Guard on or before May 5, 2011.
You may submit comments identified by docket number USCG-2011-0184 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 BOSN3 Joseph M. Edge, Coast Guard Sector North Carolina, Coast Guard; telephone 252-247-4525, 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-2011-0184), 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, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
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
The State of North Carolina Department of Transportation awarded a contract to Astron General Contracting Company of Jacksonville, NC to perform bridge maintenance on the US Highway 70 Fixed bridge crossing Newport River at Morehead City, North Carolina. The contract provides for cleaning, painting, and steel repair to begin on June 1, 2011 and will be completed by July 31, 2011. The contractor requires the main channel in the vicinity of the bridge to remain closed during mobilization on June 30, 2011 from 10 a.m. to 4 p.m. The Coast Guard will temporarily restrict access to this section of Newport River during the mobilization of the bridge maintenance equipment.
The temporary safety zone will encompass the waters of the Newport River directly under, latitude 34°43′15″ North, longitude 076°41′39″ West, and 100 yards on either side of the US Highway 70 Fixed bridge. All vessels are prohibited from transiting this section of the waterway while the safety zone is in effect. Entry into the safety zone will not be permitted except as specifically authorized by the Captain of the Port or a designated representative. To seek permission to transit the area, mariners may contact Sector North Carolina at (252) 247-4570. This zone will be enforced from 10 a.m. to 4 p.m. on June 30, 2011.
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, as supplemented by Executive Order 13563, 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.
Although this regulation will restrict access to the area, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited time, from 10 a.m. to 4 p.m., on June 30, 2011, (ii) the Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly, and (iii) although the safety zone will apply to the section of the Newport River in the immediate vicinity of the US Highway 70 Fixed bridge, vessel traffic may use alternate waterways to transit safely around the safety zone. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz).
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 rule will affect the following entities, some of which may be small entities: the owners or operators of recreational and fishing vessels intending to transit the specified portion of Newport River from 10 a.m. to 4 p.m. on June 30, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect for six hours from 10 a.m. to 4 p.m. Although the safety zone will apply to the section of the Newport River in the vicinity of the bridge, vessel traffic may use alternate waterways to transit safely around the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to the users of the waterway.
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 CWO3 Joseph Edge, Waterways Management Division Chief, Sector North Carolina, at (252) 247-4525. The Coast Guard will not retaliate against small entities that
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 an 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 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 determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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 is 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, 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 temporary § 165.T05-0184 to read as follows:
(a)
(b)
(c)
(2) Persons or vessels requiring entry into or passage through any portion of the safety zone must first request authorization from the Captain of the Port, or a designated representative, unless the Captain of the Port previously announced via Marine Safety Radio Broadcast on VHF Marine Band Radio channel 22 (157.1 MHz) that this regulation will not be enforced in that portion of the safety zone. The Captain of the Port can be contacted at telephone number (252) 247-4570 or by radio on
(d)
(e)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary Safety Zone for the “Big Rock Blue Marlin Air Show”, an aerial demonstration to be held over the waters of Bogue Sound, adjacent to Morehead City, North Carolina. This Safety Zone is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic on the Intracoastal Waterway from 7 p.m. until 8 p.m.
Comments and related material must be received by the Coast Guard on or before May 5, 2011.
You may submit comments identified by docket number USCG-2011-0168 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 BOSN3 Joseph M. Edge, Prevention Department, Coast Guard Sector North Carolina; telephone 252-247-4525, 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-2011-0168), 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, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
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
On June 11, 2011 from 7 p.m. to 8 p.m., the Big Rock Blue Marlin Tournament will sponsor the “Big Rock Blue Marlin Air Show” consisting of an aerial demonstration to take place directly above the waters of Bogue Sounds including the waters of the Intracoastal Waterway adjacent to Morehead City, North Carolina. To
The Coast Guard is proposing to establish a temporary safety zone that will restrict vessel movement for one hour prior to the event on the specified waters of Bogue Sound, Morehead City, NC. During the enforcement period, while the Aerial Event is taking place, no vessel will be allowed to transit the waterway unless the vessel is given permission from the Patrol Commander to transit. This safety zone will be enforced from 7 p.m. to 8 p.m. on June 11, 2011.
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, as supplemented by Executive Order 13563, 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. Although this regulation prevents traffic from transiting waters of Bogue Sound during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notification will be made to the maritime community via marine information broadcast and local area newspapers so mariners can adjust their plans accordingly. Vessel traffic will be able to transit the regulated area before and after the event, when the Coast Guard Patrol Commander deems it is safe to do so.
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 of operators of vessels intending to transit this section of the Bogue Sound from 7 p.m. to 8 p.m. on June 11, 2011. This safety zone would not have significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and this subject to enforcement, for only 1 hour in the evening. Vessel traffic will be able to transit the area immediately prior to and immediately following the enforcement period. Before the activation of the zone, we would issue maritime advisories widely to users of the waterway.
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 BOSN3 Joseph Edge, Prevention Department, Sector North Carolina, 252-247-4525. 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 an 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 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 determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of
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 is 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, 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 a temporary § 165-T05-0168 to read as follows:
(a)
(b)
(c)
(2) The operator of any vessel in the immediate vicinity of this safety zone shall: (i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii) Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3) The Captain of the Port, Sector North Carolina can be reached through the Sector Duty Officer at Sector North Carolina in Atlantic Beach, North Carolina at telephone number (252) 247-4570.
(4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65 MHz) and channel 16 (156.8 MHz).
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes a permanent regulation that would create security zones around cruise ships in the Southeastern New England Captain of the Port (COTP) Zone. These security zones are nearly identical to security zones currently put in place by a temporary final rule. The proposed rule would create a 100-yard radius security zone encompassing all navigable waters around any cruise ship anchored or moored and 200-yard radius security zone encompassing all navigable waters around any cruise ship underway that is being escorted by Coast Guard or law enforcement agencies assisting the Coast Guard. These zones are needed to protect cruise ships and the public from destruction, loss, or injury from sabotage, subversive acts, or other malicious acts of a similar nature. Persons or vessels may not enter these security zones without permission of the COTP or a COTP designated representative.
Comments and related material must be received by the Coast Guard on or before May 5, 2011. Requests for public meetings must be received by the Coast Guard on or before April 12, 2011.
You may submit comments identified by docket number USCG-2010-0803 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these methods.
If you have questions on this proposed rule, call Mr. Edward G. LeBlanc, Chief, Waterways Management Division, Coast Guard Sector Southeastern New England, at 401-435-2351, or
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-2010-0803), 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, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
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
The legal basis for this rule is 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, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorizes the Coast Guard to define Security Zones. The Coast Guard's maritime security mission includes the requirement to protect cruise ships from destruction, loss, or injury from sabotage, subversive acts, or other malicious acts of a similar nature. Protecting these vessels from potential threats or harm while transiting, or while moored, at any berth, or at anchor in the waters of Southeastern New England COTP Zone is necessary to safeguard cruise ships and the general public. The Coast Guard proposes a permanent regulation that would create security zones for specified navigable waters around certain cruise ships in the Southeastern New England Captain of the Port Zone. On September 22, 2010, the COTP issued a temporary final rule that created nearly identical security zones in 33 CFR 165.T01-0864.
The Coast Guard proposes to establish 100-yard radius security zones encompassing all navigable waters around cruise ships that are moored, at any berth or at anchor within the Southeastern New England COTP Zone. This notice of proposed rulemaking also proposes to establish 200-yard radius moving security zones encompassing all navigable waters around escorted cruise ships while underway in the navigable waters within the Southeastern New England COTP zone. We propose to define a “cruise ship” as a passenger vessel (as defined in 46 U.S.C. 2101(22)) that is authorized to carry more than 400 passengers for hire and is 200 feet or more in length. This definition of “cruise ship” will include ferries (as defined in 46 CFR 2.10-25) that are authorized to carry more than 400 passengers for hire and are 200 feet or more in length. This proposed zone would be activated and subject to enforcement at all times a cruise ship is underway, anchored or moored within the navigable waters of the United States in the Southeastern New England COTP Zone.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses
This proposed rule would not be a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and would 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. These proposed security zones would be activated and enforced only when a cruise ship is transiting, anchored, or moored within the Southeastern New England COTP zone. Persons and/or vessels may enter a security zone if they obtain permission from the Coast Guard COTP, Southeastern New England.
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. These proposed security zones would be enforced only when a vessel is transiting within the Southeastern New England COTP zone (a routine transit is usually two hours or less), and only when enforced by Coast Guard law enforcement personnel. Persons and/or vessels with may enter a security zone if they obtain permission from the Coast Guard COTP, Southeastern New England.
This proposed rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to operate or transit within the security zones when a cruise ship is transiting, anchored or moored.
These proposed security zones would not have a significant economic impact on a substantial number of small entities for the following reasons. These proposed security zones are temporary, and would be enforced only either when a vessel is transiting within the Southeastern New England COTP zone (a routine transit is usually two hours or less) or anchored or moored in the Zone. Persons and/or vessels may enter a security zone if they obtain permission from the Coast Guard COTP, Southeastern New England.
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 Mr. Edward G. LeBlanc, Chief, Waterways Management Division, Coast Guard Sector Southeastern New England, at 401-435-2351, or
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 determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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
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 in accordance with 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 which the Coast Guard concluded do not normally have individual or cumulative significant effects on the human environment. Since the proposed action involves establishment of security zones, the applicable categorical exclusion is found in Figure 2-1, paragraph 34(g) of the Commandant Instruction. An environmental analysis checklist supporting this preliminary determination is 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. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.123 to read as follows:
(a)
(1) Within a 200-yard radius of any cruise ship that is underway and is under escort of U.S. Coast Guard law enforcement personnel or designated representative, or
(2) Within a 100-yard radius of any cruise ship that is anchored, at any berth or moored.
(b)
“
“
“
(c)
(d)
(2) All persons and vessels granted permission to enter a security zone must comply with the instructions of the COTP or the designated representative. Emergency response vessels are authorized to move within the zone, but must abide by the restrictions imposed by the COTP or the designated representative.
(3) No person may swim upon or below the surface of the water within the boundaries of these security zones unless previously authorized by the COTP or his designated representative.
(4) Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed.
(5) Vessel operators desiring to enter or operate within the security zone shall contact the COTP or the designated representative via VHF channel 16 or 508-457-3211 (Sector Southeastern New England command center) to obtain permission to do so.
Department of Health and Human Services (HHS), Administration for Children and Families (ACF), Administration on Children, Youth and Families (ACYF), Children's Bureau (CB)
Request for public comment and consultation meetings.
The Children's Bureau is interested in improving the process by which we review title IV-B and IV-E plan requirements. CB currently reviews a State's compliance through Child and Family Service Reviews (CFSRs). Following two rounds of CFSRs in every State and the passage of several amendments to Federal child welfare laws since the CFSRs began, we believe it is time to reassess how CB reviews title IV-B and IV-E programs through the CFSR and identify enhancements and system improvements we could make.
Written comments must be submitted to the office listed in the
Interested persons may submit written comments by any of the following methods:
•
•
•
Jan Rothstein, Children's Bureau, 1250 Maryland Ave., SW., 8th Floor, Washington, DC 20024, (202) 401-5073.
The existing CFSRs enable CB to: (1) Ensure conformity with Federal child welfare requirements; (2) determine what is actually happening to children and families as they are engaged in child welfare services; and (3) assist States to enhance their capacity to help children and families achieve positive outcomes. CB conducts the reviews in partnership with State child welfare agency staff and other stakeholders involved in the provision of child welfare services. We have structured the reviews to help States identify strengths as well as areas needing improvement within their agencies and programs.
Each CFSR is a two-stage process consisting of a Statewide Assessment and an onsite review of child and family service outcomes and program systems. For the Statewide Assessment, CB prepares and transmits data profiles that contain aggregate data on the State's foster care and in-home service populations. The data profiles allow each State to compare certain safety and permanency data indicators with national standards determined by CB. The on-site review includes case record reviews, interviews with children and families engaged in services and interviews with other stakeholders. States determined not to have achieved substantial conformity in all the areas assessed are required to develop and implement Program Improvement Plans (PIPs) within two years addressing the areas of nonconformity. CB supports the States with technical assistance and monitors implementation of their plans. States that are unable to complete their PIPs successfully have some of their Federal child welfare funds withheld until they are found to be in substantial conformity or have successfully completed a PIP as prescribed in the Federal regulations.
We believe that the CFSR has been a factor contributing to increased State and local attention to child welfare practice improvement and a renewed focus on child and family outcomes and the systems supporting positive outcomes. Stakeholders have also noted that there are areas where the CFSRs could contribute to even more positive changes. To that end, we are interested in learning from stakeholders in response to the questions below how they would envision a Federal review process that meets the statutory requirements in section 1123A of the Act and holds child welfare agencies accountable for achieving positive outcomes for children and families and continuously improving the quality of their systems for doing so.
In addition to the foregoing, we would like to clarify that, although several of the questions below address Tribal involvement in Federal reviews of title IV-B and IV-E plan requirements, until regulations are in effect otherwise, Indian Tribes operating title IV-E programs of their own are not subject to CFSRs. However, Indian Tribes have participated in CFSRs in the past and Indian children are part of the CFSRs. Therefore, we are interested at this time in gaining their insight into how the process could be improved.
Please identify the question to which you are responding. If you have additional comments, please identify them by citing to the appropriate section of the regulations or review process, if appropriate:
1. How could ACF best promote and measure continuous quality improvement in child welfare outcomes and the effective functioning of systems that promote positive outcomes for children and families?
2. To what extent should data or measures from national child welfare databases (
3. What role should the child welfare case management information system or systems that States/Tribes/local agencies use for case management or quality assurance purposes play in a Federal monitoring process?
4. What roles should State/Tribal/local child welfare agencies play in establishing targets for improvement and monitoring performance towards those targets? What role should other stakeholders, such as courts, clients and other child-serving agencies play?
5. In what ways should targets and performance goals be informed by and integrated with other Federal child welfare oversight efforts?
6. What specific strategies, supports, incentives, or penalties are needed to ensure continued quality improvement and achievement of positive outcomes for children and families that are in substantial conformity with Federal child welfare laws?
7. In light of the ability of Tribes to directly operate title IV-E programs through recent changes in the statute, in what ways, if any, should a Federal review process focus on services delivered to Indian children?
8. Are there examples of other review protocols, either in child welfare or related fields, in which Tribal/State/local governments participate that might inform CB's approach to reviewing child welfare systems?
We welcome any other comments you have about Federal review of child welfare programs, including the current CFSR process.
CB invites State representatives, Tribal leaders and/or their representatives, judges, families and youth served by the child welfare system and other interested stakeholders to attend these in-person meetings or call in via the conference call number to provide their input on the questions raised above. Registration for the meetings and calls must be completed in advance per the details below. You may also provide written comments as noted in the
The Children's Bureau is also hosting Tribal Roundtables for Tribal leaders and/or their representatives. The dates of these sessions are listed below:
A portion of the agenda for these roundtables will be set aside to discuss Federal monitoring of child and family services programs under titles IV-B and IV-E. The Children's Bureau will send information directly to Tribal leaders regarding attendance at these roundtables.
Federal Communications Commission.
Proposed rule.
In this document, the Bureau invites comment, pursuant to the rules of the Council on Environmental Quality (CEQ), on draft rules and interim procedures designed to ensure that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction.
Submit comments on or before May 5, 2011.
All filings should refer to WT Docket Nos. 08-61 and 03-187. 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.
Parties should send a copy of each filing to the Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, or by e-mail to
Filings and comments 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., Portals II,
Mania K. Baghdadi, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at (202) 418-2133 or by
This is a summary of the Commission's Public Notice in WT Docket Nos. 08-61 and 03-187; DA 11-558, released on March 25, 2011. In this document, the Bureau invites comment, pursuant to the rules of the Council on Environmental Quality (CEQ), on draft rules and interim procedures designed to ensure that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction. These draft rules and procedures are intended to further the Commission's implementation of the National Environmental Policy Act (NEPA) while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.
Under CEQ's rules, before adopting procedures implementing NEPA an agency must publish its draft procedures in the
The draft rules and procedures respond to the decision of the Court of Appeals for the District of Columbia Circuit in
Under the draft rules and procedures attached to this document:
• Prior to the filing of an ASR application for a new antenna structure, members of the public would be given an opportunity to comment on the environmental effects of the proposed construction. The applicant would provide notice of the proposal to the local community, and the Commission would post information about the proposal on its Web site. Commission staff would consider any comments received from the public to determine whether an EA is required for the tower.
• EAs for those registered towers that require EAs would be filed and considered by the Commission prior to the filing of an ASR application. Those EAs are currently filed at the same time as either the ASR application or a service-specific license or permit application.
• On an interim basis pending completion of the ongoing programmatic environmental analysis of the ASR program, an EA would be required to be filed for each proposed registered tower more than 450 feet in height to address its potential impact on migratory birds. Staff would review the EA to determine whether the tower would have a significant environmental impact.
Administrative practice and procedure, Communications common carriers, Environmental impact statements, Federal buildings and facilities, Radio, Reporting and recordkeeping requirements, Satellites, and Telecommunications.
Aviation safety, Communications equipment, and Reporting and recordkeeping requirements.
Communications common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements, and Rural areas.
Administrative practice and procedure, Communications common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements, and Telecommunications.
Communications common carriers, Communications equipment, Radio, Reporting and recordkeeping requirements, Satellites, Securities, and Telecommunications.
Communications common carriers and Radio.
Communications equipment, Great Lakes, Marine safety, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone, and Vessels.
Air transportation, Communications equipment, Defense communications, Radio, and Reporting and recordkeeping requirements.
Administrative practice and procedure, Common carriers, Communications equipment, Radio, and Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 17, 22, 24, 25, 27, 80, 87, and 90 as follows:
1. The authority citation for part 1 continues to read as follows:
15 U.S.C. 79
2. Section 1.61 is amended by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) In accordance with § 1.1307 and § 17.4(c) of this chapter, the Bureau will address any environmental concerns prior to processing the registration.
3. Section 1.923 is amended by revising paragraphs (d) and (e) to read as follows:
(d)
(1) The antenna structure owner has filed an antenna structure registration application (FCC Form 854);
(2) The antenna structure owner has provided local notice and the Commission has posted notification of the proposed construction on its Web site pursuant to § 17.4(c)(3) and (4) of this chapter; and
(3) The antenna structure owner has obtained a Determination of No Hazard to Aircraft Navigation from the Federal Aviation Administration. In such instances, the applicant shall provide the FCC Form 854 File Number on its application. Once the antenna structure owner has obtained the Antenna Structure Registration Number, the applicant shall amend its application to provide the Antenna Structure Registration Number, and the Commission shall not grant the application before the Antenna Structure Registration Number has been provided. If registration is not required, the applicant must provide information in its application sufficient for the Commission to verify this fact.
(e)
(1) Environmental processing shall be completed pursuant to the process set forth in § 17.4(c) of this chapter for any facilities that use one or more new or existing antenna structures for which a new or amended registration is required by part 17 of this chapter. Environmental review by the Commission must be completed prior to construction.
(2) For applications that propose any facilities that are not subject to the process set forth in § 17.4(c) of this chapter, the applicant is required to indicate at the time its application is filed whether or not a Commission grant of the application for those facilities may have a significant environmental effect as defined by § 1.1307. If the applicant answers affirmatively, an Environmental Assessment, required by § 1.1311, must be filed with the application and environmental review by the Commission must be completed prior to construction.
4. Section 1.929 is amended by revising paragraph (a)(4) to read as follows:
(a) * * *
(4) Application or amendment requesting authorization for a facility that may have a significant environmental effect as defined in § 1.1307, unless the facility has been determined not to have a significant environmental effect through the process set forth in § 17.4(c) of this chapter.
5. Section 1.934 is amended by adding paragraph (g) to read as follows:
(g)
6. Section 1.1307 is amended by adding a note to paragraph (d) to read as follows:
(d) * * *
Pending a final determination as to what, if any, permanent measures should be adopted specifically for the protection of migratory birds, the Bureau shall require an Environmental Assessment for an otherwise categorically excluded action involving a new or existing antenna structure, for which an antenna structure registration application (FCC Form 854) is required under part 17 of this chapter, if the proposed antenna structure will be more than 450 feet in height above ground level (AGL) and involves either: (1) Construction of a new antenna structure; (2) modification or replacement of an existing antenna structure involving a substantial increase in size as defined in Section I(C)(1)-(3) of Appendix B to Part 1 of this chapter; or (3) addition of lighting or adoption of a less preferred FAA Lighting Style as defined in § 17.4(c)(1)(C) of this chapter. The Bureau shall consider whether to require an EA for other antenna structures subject to § 17.4(c) of this chapter in accordance with § 17.4(c)(8) of this chapter. An Environmental Assessment required pursuant to this note will be subject to the same procedures that apply to any Environmental Assessment required for a proposed tower or modification of an existing tower for which an antenna structure registration application (FCC Form 854) is required, as set forth in § 17.4(c) of this chapter.
7. The authority citation for part 17 continues to read as follows:
Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, Interpret or apply secs. 301, 309, 48 Stat. 1081, 1085, as amended; 47 U.S.C. 301, 309.
8. Section 17.4 is amended by revising paragraph (c) to read as follows:
(c) Each prospective applicant must complete the environmental notification process described in this paragraph, except as specified in paragraph (c)(1) of this section.
(1)
(i) For notification only, such as to report a change in ownership or contact information, or the dismantlement of an antenna structure;
(ii) For a reduction in height of an antenna structure or an increase in
(iii) For removal of lighting from an antenna structure or adoption of a more preferred FAA Lighting Style. For this purpose FAA Lighting Styles are ranked as follows (with the most preferred lighting style listed first and the least preferred listed last): FAA Style B (L-856), FAA Style D (L-865), FAA Style E (L-864/L-865/L-810), FAA Style C (L-856/L-865), FAA Style F (L-856 Day/L-864 Night and L-810) and FAA Style A (L-864/L-810). A complete description of each FAA Style and the manner in which it is to be deployed can be found at FAA, U.S. Dept. of Transportation, Advisory Circular: Obstruction Marking and Lighting, AC 70/7460-1K (Feb. 1, 2007);
(iv) For replacement of an existing antenna structure at the same geographic location that does not require an Environmental Assessment (EA) under § 1.1307(a) through (d) of this chapter, provided the new structure will not use lights if the previous structure was unlighted, the new structure will not use a less preferred FAA Lighting Style, there will be no substantial increase in size as defined in Section I(C)(1)-(3) of Appendix B to part 1 of this chapter, and there will be no construction or excavation more than 30 feet beyond the existing antenna structure property;
(v) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure; or
(vi) For construction, modification, or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for evaluating the potentially significant environmental effect of the proposed antenna structure on the quality of the human environment and for invoking any required environmental impact statement process, or for any other structure where another Federal agency has assumed such responsibilities pursuant to a written agreement with the Commission.
(2)
(3)
(4)
(5)
(1)
(2)
(6)
(7)
(8)
(9)
9. The authority citation for part 22 continues to read as follows:
47 U.S.C. 154, 222, 303, 309 and 332.
10. Section 22.143 is amended by revising paragraph (d)(4) to read as follows:
(d) * * *
(4) For any construction or alteration that would exceed the requirements of § 17.7 of this chapter, the licensee has notified the appropriate Regional Office of the Federal Aviation Administration (FAA Form 7460-1), secured a valid FAA determination of “no hazard,” and received antenna height clearance and obstruction marking and lighting specifications (FCC Form 854R) from the FCC for the proposed construction or alteration.
11. The authority citation for part 24 continues to read as follows:
47 U.S.C. 154, 301, 302, 303, 309 and 332.
12. Section 24.2 is amended by revising paragraphs (b) and (f) to read as follows:
(b)
(f)
13. The authority citation for part 25 continues to read as follows:
47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309, and 332 of the Communications Act, as amended, 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted.
14. Section 25.113 is amended by revising paragraph (a) to read as follows:
(a) Construction permits are not required for satellite earth stations. Construction of such stations may commence prior to grant of a license at the applicant's own risk. Applicants must comply with the provisions of 47 CFR 1.1312 relating to environmental processing prior to commencing construction. Applicants filing applications that propose the use of one or more new or existing antenna structures requiring registration under part 17 of this chapter must also comply with any applicable environmental notification process specified in § 17.4(c) of this chapter.
15. Section 25.115 is amended by revising paragraph (c)(2)(vi)(A)(
(c) * * *
(2) * * *
(vi) * * *
(A) * * *
(
16. The authority citation for part 27 continues to read as follows:
47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337 unless otherwise noted.
17. Section 27.3 is amended by revising paragraphs (b) and (f) to read as follows:
(b)
(f)
18. The authority citation for part 80 continues to read as follows:
Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.
19. Section 80.3 is amended by revising paragraphs (b) and (e) to read as follows:
(b)
(e)
20. The authority citation for part 87 continues to read as follows:
47 U.S.C. 154, 303, and 307(e), unless otherwise noted.
21. Section 87.3 is amended by revising paragraphs (b) and (e) to read as follows:
(b)
(e)
22. The authority citation for part 90 continues to read as follows:
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
23. Section 90.5 is amended by revising paragraphs (b) and (f) to read as follows:
(b)
(f)
24. Section 90.129 is amended by revising paragraph (g) to read as follows:
(g) The environmental assessment required by §§ 1.1307 and 1.1311 of this chapter, if applicable. If an application filed under this part proposes the use of one or more new or existing antenna structures that require registration under part 17 of this chapter, any required environmental assessment should be submitted pursuant to the process set forth in § 17.4(c) of this chapter rather than with the application filed under this part.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Bearmouth mountainsnail (
The finding announced in this document was made on April 5, 2011.
This finding is available on the Internet at
Mark Wilson, Field Supervisor, Montana Field Office (
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
Federal action for the Bearmouth mountainsnail, Byrne Resort mountainsnail, and meltwater lednian stonefly began on July 30, 2007, after we received a petition dated July 24, 2007, from Forest Guardians (now WildEarth Guardians) requesting that the Service: (1) Consider all full species in our mountain-prairie region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates for listing; and (2) list each species as either endangered or threatened (Forest Guardians 2007, pp. 1-37). The petition incorporated all analyses, references, and documentation provided by NatureServe in its online database at
On March 19, 2008, WildEarth Guardians filed a complaint (1:08-CV-472-CKK) indicating that the Service failed to comply with its statutory duty to make 90-day findings on their two multiple species petitions in two of the Service's administrative regions—one for the mountain-prairie region, and one for the Southwest region (
On August 18, 2009, we published a 90-day finding for 38 mountain-prairie region species (74 FR 41649). In that finding, we found that the petition presented substantial information to indicate that listing of Bearmouth mountainsnail and Byrne Resort mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of their habitat or range resulting from road construction and associated activities. We also found that listing of the meltwater lednian stonefly may be warranted based on threats from climate change, and specifically the melting of glaciers associated with the species' habitat. The finding also requested further information pertaining to all three “species” (74 FR 41649). However, the 90-day finding did not formally consider the taxonomic status of the petitioned entities.
This notice constitutes the 12-month finding on the July 24, 2007, petition to list the Bearmouth mountainsnail, Byrne Resort mountainsnail, and meltwater lednian stonefly as endangered or threatened.
Bearmouth mountainsnail and Byrne Resort mountainsnail are ascribed to the genus
Most mountainsnail species are relatively large land snails (adult body size greater than 5 centimeters (cm) (2 inches (in.)) that typically prefer forested environments, calcium-rich areas, and generally high available water content during generally dry conditions in spring and summer months (Weaver 2006, p. 9). They survive colder conditions at higher elevations by burrowing underground and aestivating (Weaver 2006, p. 9). Individuals often also burrow during hot summer months, appearing on the surface to feed during or after rains (Frest and Johannes 1995, p. 22; Weaver 2006, p. 9). One adaptation by
Western land snails are typically herbivores, but some may consume animal matter (Frest and Johannes 1995, p. 24). Land snails contribute substantially to nutrient recycling, often breaking down plant detritus and animal waste (Frest and Johannes 1995, pp. 24-25). They are preyed upon extensively by small mammals (
The life history of western land snails is strongly controlled by climate. Some species of
The distribution and abundance of Bearmouth mountainsnail and Byrne Resort mountainsnail are not well known. In general, very little is known about the distribution and status of terrestrial mollusks in Montana (
Frest and Johannes (1995, p. 5) stated that the original distribution of Bearmouth mountainsnail is the “Clark Fork River valley in the area between Clinton and Garrison, Granite and Powell counties, Montana,” and they described the present distribution (in 1995) as “a few very small colonies in the Bearmouth area.” They did not provide any spatial information about the actual location of these colonies. They further speculated that Bearmouth mountainsnail may occur in the adjacent lands managed by the U.S. Forest Service (Lolo National Forest) and the State of Montana. Little information about the Bearmouth mountainsnail has become available since the report by Frest and Johannes (1995, p. 115). No occurrences of Bearmouth mountainsnail were reported in more recent surveys of terrestrial mollusks conducted by the Montana Natural Heritage Program (MNHP) (Hendricks 2003, entire; Hendricks
The only potential recent occurrences of Bearmouth mountainsnail come from surveys conducted by Dr. Kathleen Weaver, an assistant professor at the University of La Verne, California, who recently began conducting research on the distribution, ecology, and genetics of
No information is available on the current abundance or distribution of Byrne Resort mountainsnail, or whether the “species” even exists. The original distribution of the Byrne Resort mountainsnail was described by Frest and Johannes (1995, p. 140) as “the Clark Fork River valley near Bearmouth, Granite County, MT,” and they described the present distribution (in 1995) as “a few very small colonies in the old Byrne Resort area.” As with the Bearmouth mountainsnail, Frest and Johannes did not provide any accurate spatial information about the actual location of these colonies. No occurrences of Byrne Resort mountainsnail were reported in more recent surveys of terrestrial mollusks conducted by the MNHP (Hendricks 2003, entire; Hendricks
Factors determining habitat preferences of land snails include cover, effective moisture availability, and geologic history (Frest and Johannes 1995, p. 20). Most land snail species including those in the genus
The genus
Taxonomic classification of
The basis of the species designations for the Bearmouth mountainsnail (
The only additional information about the occurrence and taxonomic status of Bearmouth mountainsnail comes from Dr. Weaver (Weaver 2010a, 2010b, pers. comm.). As described above, she identified two colonies of
Uncertainty notwithstanding, the Bearmouth mountainsnail is not included as a valid taxon in the classic works by Pilsbry (1916, entire; 1939, entire), which are still accepted as the most authoritative publications on the taxonomy of
There have been no additional collections of Byrne Resort mountainsnail at the location initially described by Frest and Johannes (1995, p. 140) (Hendricks 2010, pers. comm.; Weaver 2010b, pers. comm.). Specimens collected near where Frest and Johannes made their collection of Byrne Resort mountainsnail have been tentatively identified as a variant of an existing species (lyrate mountainsnail,
The taxonomic validity of the Byrne Resort mountainsnail is highly uncertain given that the only description was based on shell morphology, which, as discussed above, is widely recognized by the scientific community as a poor trait for defining taxonomic groups in
We have very little information on the distribution and abundance of these two land snails. In fact, we could not find any information on occurrence or even the existence of the species referred to as the “Byrne Resort mountainsnail” by Frest and Johannes (1995, p. 139). We have some information, based on recent surveys and genetic analyses, that two colonies of land snails tentatively identified by a species expert as “Bearmouth mountainsnail” currently exist in the vicinity of the Clark Fork River valley, Montana (Weaver 2010a, 2010b, pers. comm.). To our knowledge, there has never been a systematic analysis of the validity of taxonomic arrangements (
Neither the Bearmouth mountainsnail nor the Byrne Resort mountainsnail is recognized as a species or subspecies, and their taxonomic statuses are currently uncertain. Consequently, the Service does not at this time consider the Bearmouth mountainsnail or the Byrne Resort mountainsnail to be listable entities under section 3(16) of the Act (16 U.S.C. 1532(16)) because they do not belong to taxa currently recognized by the scientific community. The Service encourages additional scientific investigations that will resolve the significant uncertainties concerning the occurrence and taxonomy of
The meltwater lednian stonefly (
Kondratieff and Lechleitner (2002, pp. 385, 391) reported that specimens thought to be the meltwater lednian stonefly were collected in Mount Rainier National Park (Mount Rainier NP), Washington. They also cited a personal communication with a species expert (R.W. Baumann, Brigham Young University, Provo, UT) that similar specimens also are known from North Cascades National Park (North Cascades NP), Washington, and a site in the California Sierra Nevada (Kondratieff and Lechleitner 2002, pp. 388-389). However, the specimens discovered in Mount Rainier NP, North Cascades NP, and in the Sierra Nevada Mountains of California are now believed to represent additional undescribed taxa (presumably in the genus
The nymph (aquatic juvenile stage) of the meltwater lednian stonefly is dark red-brown on its dorsal (top) surface and pink on the ventral (lower) surface, with light grey-green legs (Baumann and Stewart 1980, p. 658). Mature nymphs can range in size from 4.5 to 6.5 millimeter (mm) (0.18 to 0.26 in.) (Baumann and Stewart 1980, p. 655). Adults also are small, ranging in size from 4 to 6 mm (0.16 to 0.24 in.) (Baumann 1975, p. 19).
Plecoptera (stoneflies) are primarily associated with clean, cool, running waters (Stewart and Harper 1996, p. 217). The Nemourids are usually the dominant Plecoptera family in mountain-river ecosystems, both in terms of total biomass and in numbers of species present (Baumann 1975, p. 1). Eggs and larvae of all North American species of stoneflies, including the meltwater lednian stonefly, are aquatic (Stewart and Harper 1996, p. 217). Nemourid stonefly larvae are typically herbivores or detritivores, and their feeding mode is generally that of a shredder or collector-gatherer (Baumann 1975, p. 1; Stewart and Harper 1996, pp. 218, 262). We have no information on the longevity of the meltwater lednian stonefly, but in general stoneflies can complete their life cycles within a single year (univoltine) or in 2 to 3 years (semivoltine) (Stewart and Harper 1996, pp. 217-218). Adult meltwater lednian stoneflies are thought to emerge and breed in August and September (Baumann and Stewart 1980, p. 658; Giersch 2010b, pers. comm.; MNHP 2010a).
The current known distribution of the meltwater lednian stonefly is restricted to a handful of locations just to the east and west of the Continental Divide within Glacier NP (Newell
Although the species has been observed recently only in Glacier NP, experts speculate that suitable habitat for the species may extend north into Waterton Lakes National Park in Canada and south into the Scapegoat-Great Bear-Bob Marshall wilderness areas of Montana, or in similar areas of the northern Rocky Mountains in alpine snow-melt streams (
In general, little information exists about the meltwater lednian stonefly, and additional surveys are needed in order to develop a more thorough understanding of its distribution and abundance (
The meltwater lednian stonefly is found in snow-melt runoff streams in high-elevation, alpine areas, most typically in locations closely linked to glacial runoff (Baumann and Stewart 1980, p. 658; MNHP 2010a) or alpine springs (Hauer
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR 424) set forth procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making this finding, information pertaining to meltwater lednian stonefly in relation to the five factors provided in section 4(a)(1) of the Act is discussed below.
In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined in the Act.
The known distribution of the meltwater lednian stonefly is entirely within the boundaries of Glacier NP. The ecosystems in most national parks are considered to be comparatively pristine, and the Glacier NP is a relatively unaltered landscape when compared to other areas of western North America (Fagre 2005, p. 2).
Climate is influenced primarily by long-term patterns in air temperature and precipitation. The Intergovernmental Panel on Climate Change (IPCC) has concluded that climate warming is unequivocal, and is now evident from observed increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global mean sea level (IPCC 2007, pp. 30-31). Continued greenhouse gas emissions at or above current rates are expected to cause further warming (IPCC 2007, p. 30). The years from 1995 through 2006 rank among the 12 warmest years in the instrumental record of global average near-surface temperature since 1850 (Independent Scientific Advisory Board (ISAB) 2007, p. 7; IPCC 2007, p. 30). During the last century, mean annual air temperature increased by approximately 0.6 °C (1.1 °F) (IPCC 2007, p. 30). Warming appears to have accelerated in recent decades, as the linear warming trend over the 50 years from 1956 to 2005 (average 0.13 °C or 0.24 °F per decade) is nearly twice that for the 100 years from 1906 to 2005 (IPCC 2007, p. 30). Climate change scenarios estimate that the mean air temperature could increase by over 3 °C (5.4 °F) by 2100 (IPCC 2007, pp. 45-46). The IPCC also projects there will likely be regional increases in the frequency of hot extremes, heat waves, and heavy precipitation, as well as greater warming in high northern latitudes (IPCC 2007, p. 46).
We recognize that there are scientific differences of opinion on many aspects of climate change, including the role of natural variability in climate. In our analysis, we rely primarily on synthesis documents (IPCC 2007, entire; ISAB 2007, entire; Karl
Water temperature and hydrology (stream flow) influence many of the basic physical and biological processes in aquatic systems, and both are sensitive to environmental changes that result from climate change (
Significant trends in water temperature and stream flow have been observed in the western United States (Stewart
The western United States appears to be warming faster than the global average. In the Pacific Northwest, regionally averaged temperatures have risen 0.8 °C (1.5 °F) over the last century and as much as 2 °C (4 °F) in some areas. Since 1900, the mean annual air temperature for Glacier NP and the surrounding region has increased 1.33 °C, which is 1.8 times the global mean increase (U.S. Geological Survey (USGS) 2010, p. 1). Mean annual air temperatures are projected to increase by another 1.5 to 5.5 °C (3 to 10 °F) over the next 100 years (Karl
For the purposes of this finding, we consider the foreseeable future for anticipated environmental changes such as reductions in glacial meltwater and increases in stream temperatures to be approximately 40 years based on two factors. First, various global climate models (GCMs) and emissions scenarios give consistent predictions within that
While projected patterns of warming across North America are generally consistent across different GCMs and emissions scenarios (Ray
Based on the information described above, we believe that environmental changes resulting from climate change may affect the meltwater lednian stonefly through two primary mechanisms: (1) Loss of glaciers, and (2) changes in hydrology and increased water temperature.
Environmental changes resulting from climate change are assumed to be directly related to the well-documented loss of glaciers in Glacier NP (
Hall and Fagre (2003, entire) modeled the effects of climate change on glaciers in Glacier NP's Blackfoot-Jackson basin using then-current climate assumptions (doubling of atmospheric carbon dioxide by 2030). Current climate change publications consider scenarios with higher anticipated carbon dioxide concentrations and associated temperature changes. However, we are not aware of any other published studies using more recent climate scenarios that speak directly to anticipated conditions in Glacier NP, so we use Hall and Fagre's predictions in our analysis. Under this scenario, they predicted that increases in winter precipitation would not be able to buffer glacial shrinking, and the Blackfoot-Jackson glaciers, which are among the largest in Glacier NP, would disappear entirely by 2030 (Hall and Fagre 2003, pp. 137-138).
Glacial shrinking varies by topography (structure and position of land underlying the glaciers), with the result that glaciers shrink at different rates (
The consequences of glacier shrinking and glacier loss to aquatic systems inhabited by the meltwater lednian stonefly in Glacier NP are expected to be significant (
In some cases, streams might change from perennial (always flowing) to ephemeral (only flowing seasonally) as glaciers disappear (Hauer
Loss of glaciers also may indirectly affect alpine streams by changing the riparian vegetation and nutrient cycling in stream ecosystems. For example, the reduced snowpacks that lead to glacier recession are predicted to allow high-elevation trees to become established above the current treeline and in subalpine meadows, and thus to reduce the diversity of herbaceous plants (Hall and Fagre 2003, pp. 138-139). Changes in riparian vegetation (such as a shift from deciduous to coniferous vegetation) may affect nutrient cycling in headwater streams and the quality of food resources available to herbivorous aquatic insects (
Reduced water volume of snowmelt runoff from glaciers (Fagre 2005, p. 7), combined with earlier runoff (
In summary, we expect environmental changes resulting from climate change to affect the meltwater lednian stonefly through loss of glaciers, which can lead to the permanent or seasonal drying of currently occupied habitats, and through interrelated alterations to existing hydrologic and thermal regimes, which will reduce the extent of habitat suitable for this species because it has very specific thermal requirements (
The impacts of environmental changes resulting from climate change will likely continue within the foreseeable future (40 years). Due to the magnitude and extent of the effects of the environmental changes resulting from climate change, we conclude that the environmental changes resulting from climate change constitute a significant threat to the meltwater lednian stonefly in the foreseeable future.
Glacier NP is managed to protect natural and cultural resources, and the landscape within the park is relatively pristine. However, the Glacier NP does include a number of human-built facilities and structures, such as the Going-to-the-Sun Road (which bisects the Glacier NP) and numerous visitor centers, trailheads, overlooks, and lodges (
One major project initiated in 2003, and that is ongoing as of 2011, is the improvement of the Going-to-the-Sun Road (NPS 2003a; 2003b). This road parallels or bisects a number of streams in the Glacier NP including McDonald, Logan, Lunch, Siyeh, and Baring Creeks (NPS 2003a, p. 134). Localized land disturbance associated with construction activities could lead to introduction of sediment into stream channels (
We do not have any information indicating maintenance and improvement of other Glacier NP facilities and structures is affecting the species. Most documented occurrences of meltwater lednian stonefly are in remote locations upstream from human-built structures; thus we conclude that maintenance and improvement of other Glacier NP facilities and structures does not constitute a threat to the meltwater lednian stonefly or its habitat now or in the foreseeable future.
Between 2000 to 2008, Glacier NP averaged more than 1.8 million visitors annually (NPS 2008). Many of the recent collection sites for the meltwater lednian stonefly (
Climate change, and the associated effects of glacier loss, reduced streamflows, and increased water temperatures, is expected to
We are not aware of any threats involving the overutilization or collection of the meltwater lednian stonefly (
We are not aware of any diseases that affect the meltwater lednian stonefly. Therefore, we do not consider disease to be a threat to the species now or in the foreseeable future.
We presume that nymph and adult meltwater lednian stoneflies may occasionally be subject to predation by bird species such as the American dipper (
In summary, there is currently no scientific evidence to indicate that the meltwater lednian stonefly is affected by any diseases, or that any avian predation that occurs constitutes an abnormal (above background-level) predator-prey interaction likely to have adverse population-wide effects. Therefore, we do not find disease or predation to be threats to the meltwater lednian stonefly now or in the forseeable future.
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to those existing and foreseeable threats that place the meltwater lednian stonefly in danger of becoming either endangered or threatened. The currently documented distribution of the species is within the boundaries of Glacier NP, which is under the jurisdiction of the National Park Service (NPS). Thus, there are a number of Federal laws and regulations that may be relevant.
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
The NPS Organic Act of 1916 (16 U.S.C. 1
On December 15, 2009, the U.S. Environmental Protection Agency (EPA) published in the
The existing regulatory mechanisms, especially the NPS Organic Act, appear to adequately protect the pristine nature of Glacier NP and presumably the high-alpine streams inhabited by the meltwater lednian stonefly. Thus, at a local or regional level we have no evidence that such regulatory mechanisms are inadequate to protect the species now or in the foreseeable future, and we expect that meltwater lednian stonefly habitat in Glacier NP will be generally protected from direct human disturbance. However, we consider habitat loss and modification resulting from the environmental changes due to climate change to constitute the primary threat to the species. The United States is only now beginning to address global climate change through the regulatory process (
The meltwater lednian stonefly is currently considered to be a narrow endemic found only within Glacier NP. At present, the species' restricted range makes the species vulnerable to extirpation by localized disturbances or environmental conditions, such as fire, flood, and drought. We have no information on the specific effects of any of these disturbances on the meltwater lednian stonefly, nor any information on the ability of the species to recover from disturbance or disperse to new habitats. However, in general, organisms of alpine stream segments may be isolated by specific thermal or habitat criteria that make transfer from one stream to another difficult despite the physical connections that exist in dendritic stream networks (
The restricted range of the meltwater lednian stonefly does not necessarily constitute a threat in itself. However, the restricted range in concert with the threat of habitat loss and modification resulting from the environmental changes due to climate change is expected to increase the vulnerability of the species, and thus we anticipate this will become a threat in the foreseeable future. We are not aware of any additional natural or manmade factors affecting the species' continued existence that present a current or potential threat in the foreseeable future to the meltwater lednian stonefly, but we do consider the interaction of the species' restricted range with the threat of habitat loss in the foreseeable future to be a threat to the species under this factor.
As required by the Act, we considered the five factors in assessing whether the meltwater lednian stonefly is endangered or threatened throughout all or a significant portion of its range. We carefully examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed the petition, information available in our files, other available published and unpublished information, and we consulted with recognized experts and other Federal and State agencies.
The meltwater lednian stonefly is a narrowly distributed endemic presently known to occur in a small number of cold, snowmelt- or glacier-fed, high-alpine streams in Glacier NP, Montana. Our status review identified threats to the species related to Factors A, D, and E. In particular, under Factor A, the melting of glaciers in Glacier NP is considered a threat to the species, now and in the foreseeable future, because loss of glaciers is expected to alter the thermal and hydrologic regimes of high-alpine streams occupied by the species. Higher water temperatures, seasonal or permanent stream dewatering, and changes in the timing and volume of snowmelt may change the existing habitat such that it no longer satisfies the ecological and physiological requirements of the species. While existing regulatory mechanisms provide adequate protection for the meltwater lednian stonefly and its habitat from direct destruction or modification resulting from most human activities, the existing regulatory mechanisms do not address the primary threat to the species, which is habitat loss and modification resulting from environmental changes caused by global climate change. Thus, under Factor D, we conclude the existing regulatory mechanisms do not adequately address the threat of habitat loss and modification in the foreseeable future. In addition, under Factor E we conclude that the restricted range of the species, while not a threat by itself, is expected to interact with the threat of habitat loss and modification to increase the
On the basis of the best scientific and commercial information available, we find that listing of the meltwater lednian stonefly as endangered or threatened is warranted. We will make a determination on the status of the species as endangered or threatened when we prepare a proposed listing determination. However, as explained in more detail below (
We have reviewed the available information to determine if the existing and foreseeable threats render the species at risk of extinction now, such that issuing an emergency regulation temporarily listing the species, under section 4(b)(7) of the Act, is warranted. We determined that issuing an emergency regulation temporarily listing the species is not warranted at this time, because the species is not under immediate threat of extinction. Glaciers still exist in Glacier NP and are expected to be present through the next decade. However, if at any time we determine that issuing an emergency regulation temporarily listing the meltwater lednian stonefly is warranted, we will initiate the action at that time.
The Service adopted guidelines on September 21, 1983 (48 FR 43098), to establish a rational system for utilizing available resources for the highest priority species when adding species to the Lists of Endangered or Threatened Wildlife and Plants or reclassifying species listed as threatened to endangered status. These guidelines, titled “Endangered and Threatened Species Listing and Recovery Priority Guidelines,” address the immediacy and magnitude of threats, and the level of taxonomic distinctiveness by assigning priority in descending order to monotypic genera (genus with one species), full species, and subspecies (or equivalently, distinct population segments of vertebrates).
As a result of our analysis of the best available scientific and commercial information, we assigned the meltwater lednian stonefly a Listing Priority Number (LPN) of 4 based on our finding that the species faces threats that are of high magnitude but are not imminent. These primary threats include the present or threatened destruction, modification, or curtailment of its habitat resulting from climate change, and the inadequacy of existing regulatory mechanisms to address threats from climate change.
Under the Service's guidelines, the magnitude of threat is the first criterion we look at when establishing a listing priority. The guidelines indicate that species with the highest magnitude of threat are those species facing the greatest threats to their continued existence. These species receive the highest listing priority. We consider the threats that the meltwater lednian stonefly faces from melting glaciers and other environmental changes that result from climate change to be high in magnitude because of the recent observations of glacial ablation (shrinking) in Glacier NP and the projections that all glaciers in Glacier NP may disappear in the next 20 years, and because we expect all known populations of the meltwater lednian stonefly to be affected by these changes.
Under our LPN guidelines, the second criterion we consider in assigning a listing priority is the immediacy of threats. This criterion is intended to ensure that species facing actual, identifiable threats are given priority over those for which threats are only potential or for those that are intrinsically vulnerable but are not known to be presently facing such threats. The significant reduction in glacier sizes in Glacier NP observed during the past few decades and the changes in hydrologic patterns and water temperatures attributed to climate change suggests that habitat loss and modification may represent a current threat to the species. Because of its apparent dependence on glacial meltwater for survival, the meltwater lednian stonefly is intrinsically vulnerable to threats from the environmental changes resulting from climate change. However, we do not have sufficient empirical information on the meltwater lednian stonefly to evaluate whether there are any trends in the occurrence or abundance of the species, nor do we have any information about the species' response to such changes. Thus, we cannot conclude that the species is currently actually facing the threat of habitat loss and modification, which would be necessary to make a finding that the threat of environmental changes resulting from climate change is imminent. Environmental changes resulting from climate change are reasonably certain to occur, but we have no empirical (documented) evidence that the resulting threat to the species is imminent (ongoing). The other identified threats include inadequate regulatory mechanisms for addressing the environmental changes resulting from climate change, and the interaction of the species' restricted range with the threat of habitat loss resulting from climate change. These threats act in concert with climate change, and so they also are not imminent. We expect the threat of climate change to intensify in the foreseeable future based on projections of air temperature increases from current global climate models and the predicted melting of all glaciers in Glacier NP by the year 2030. Therefore, based on our LPN guidelines, the threats are not imminent (ongoing).
The third criterion in our LPN guidelines is intended to devote resources to those species representing highly distinctive or isolated gene pools as reflected by taxonomy. The meltwater lednian stonefly (
Therefore, we have assigned the meltwater lednian stonefly an LPN of 4 based on our determination that the threats are high in magnitude but not imminent, and because the species is recognized as a monotypic genus.
We will continue to monitor the threats to the meltwater lednian stonefly and the species' status on an annual basis, and should the taxonomic status or the magnitude or imminence of the threats change, we will revisit our assessment of its LPN.
Because we have assigned the meltwater lednian stonefly a LPN of 4, work on a proposed listing determination for the meltwater lednian stonefly is precluded by work on higher priority listing actions with absolute statutory, court-ordered, or court-approved deadlines and on final listing determinations for those species that were proposed for listing with funds from FY 2010. This work includes all the actions listed in the tables below under Preclusion and Expeditious Progress.
Preclusion is a function of the listing priority of a species in relation to the resources that are available and the cost and relative priority of competing demands for those resources. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a listing proposal regulation or whether promulgation of such a proposal is precluded by higher-priority listing actions.
The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: Proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists of Endangered and Threatened Wildlife and Plants (Lists) or to change the status of a species from threatened to endangered; annual “resubmitted” petition findings on prior warranted-but-precluded petition findings as required under section 4(b)(3)(C)(i) of the Act; critical habitat petition findings; proposed and final rules designating critical habitat; and litigation-related, administrative, and program-management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. The median cost for preparing and publishing a 90-day finding is $39,276; for a 12-month finding, $100,690; for a proposed rule with critical habitat, $345,000; and for a final listing rule with critical habitat, $305,000.
We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (
Since FY 2002, the Service's budget has included a critical habitat subcap to ensure that some funds are available for other work in the Listing Program (“The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001)). In FY 2002 and each year until FY 2006, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds have been available for other listing activities. In some FYs since 2006, we have been able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species. In other FYs, while we were unable to use any of the critical habitat subcap funds to fund proposed listing determinations, we did use some of this money to fund the critical habitat portion of some proposed listing determinations so that the proposed listing determination and proposed critical habitat designation could be combined into one rule, thereby being more efficient in our work. At this time, for FY 2011, we do not know if we will be able to use some of the critical habitat subcap funds to fund proposed listing determinations.
We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis. Through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities nationwide. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress.
Congress identified the availability of resources as the only basis for deferring the initiation of a rulemaking that is warranted. The Conference Report accompanying Public Law 97-304 (Endangered Species Act Amendments of 1982), which established the current statutory deadlines and the warranted-but-precluded finding, states that the amendments were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [that is, for a lower-ranking species] unwise.” Although that statement appeared to refer specifically to the “to the maximum extent practicable” limitation on the 90-day deadline for making a “substantial information” finding, that finding is made at the point when the Service is deciding whether or not to commence a status review that will determine the degree of threats facing the species, and therefore the analysis underlying the statement is more relevant to the use of the warranted-but-precluded finding, which is made when the Service has already determined the degree of threats facing the species and is deciding whether or not to commence a rulemaking.
In FY 2011, on March 18, 2011, Congress passed a continuing resolution which provides funding at the FY 2010 enacted level through April 8, 2011. Until Congress appropriates funds for FY 2011 at a different level, we will fund listing work based on the FY 2010 amount. Thus, at this time in FY 2011, the Service anticipates an appropriation of $22,103,000 for the listing program based on FY 2010 appropriations. Of that, the Service anticipates needing to dedicate $11,632,000 for determinations of critical habitat for already listed species. Also $500,000 is appropriated for foreign species listings under the Act. The Service thus has $9,971,000 available to fund work in the following categories: compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related, administrative, and listing program-management functions; and high-priority listing actions for some of our candidate species. In FY 2010, the Service received many new petitions and a single petition to list 404 species. The receipt of petitions for a large number of species is consuming the Service's listing funding that is not dedicated to meeting court-ordered commitments. Absent some ability to balance effort among listing duties under existing funding levels, it is unlikely that the Service will be able to initiate any new listing determination for candidate species in FY 2011.
In 2009, the responsibility for listing foreign species under the Act was transferred from the Division of Scientific Authority, International Affairs Program, to the Endangered Species Program. Therefore, starting in FY 2010, we used a portion of our funding to work on the actions described above for listing actions related to foreign species. In FY 2011, we anticipate using $1,500,000 for work
For the above reasons, funding a proposed listing determination for the meltwater lednian stonefly, which has an LPN of 4, is precluded by court-ordered and court-approved settlement agreements, listing actions with absolute statutory deadlines, work on final listing determinations for those species that were proposed for listing with funds from FY 2011, and work on proposed listing determinations for those candidate species with a higher listing priority (
Based on our September 21, 1983, guidelines for assigning an LPN for each candidate species (48 FR 43098), we have a significant number of species with high priority LPNs. Using these guidelines, we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats (high or moderate to low), immediacy of threats (imminent or nonimminent), and taxonomic status of the species (in order of priority: Monotypic genus (a species that is the sole member of a genus); species; or part of a species (subspecies, distinct population segment, or significant portion of the range)). The lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority).
Because of the large number of high-priority species, we have further ranked the candidate species with an LPN of 2 by using the following extinction-risk type criteria: International Union for the Conservation of Nature and Natural Resources (IUCN) Red list status/rank, Heritage rank (provided by NatureServe), Heritage threat rank (provided by NatureServe), and species currently with fewer than 50 individuals, or 4 or fewer populations. Those species with the highest IUCN rank (critically endangered), the highest Heritage rank (G1), the highest Heritage threat rank (substantial, imminent threats), and currently with fewer than 50 individuals, or fewer than 4 populations, originally comprised a group of approximately 40 candidate species (“Top 40”). These 40 candidate species have had the highest priority to receive funding to work on a proposed listing determination. As we work on proposed and final listing rules for those 40 candidates, we apply the ranking criteria to the next group of candidates with an LPN of 2 and 3 to determine the next set of highest priority candidate species. Finally, proposed rules for reclassification of threatened species to endangered are lower priority, because as listed species, they are already afforded the protection of the Act and implementing regulations. However, for efficiency reasons, we may choose to work on a proposed rule to reclassify a species to endangered if we can combine this with work that is subject to a court-determined deadline.
With our workload so much bigger than the amount of funds we have to accomplish it, it is important that we be as efficient as possible in our listing process. Therefore, as we work on proposed rules for the highest priority species in the next several years, we are preparing multi-species proposals when appropriate, and these may include species with lower priority if they overlap geographically or have the same threats as a species with an LPN of 2. In addition, we take into consideration the availability of staff resources when we determine which high-priority species will receive funding to minimize the amount of time and resources required to complete each listing action.
As explained above, a determination that listing is warranted but precluded must also demonstrate that expeditious progress is being made to add and remove qualified species to and from the Lists of Endangered and Threatened Wildlife and Plants. As with our “precluded” finding, the evaluation of whether progress in adding qualified species to the Lists has been expeditious is a function of the resources available for listing and the competing demands for those funds. (Although we do not discuss it in detail here, we are also making expeditious progress in removing species from the list under the Recovery program in light of the resource available for delisting, which is funded by a separate line item in the budget of the Endangered Species Program. So far during FY 2011, we have completed one delisting rule.) Given the limited resources available for listing, we find that we are making expeditious progress in FY 2011 in the Listing Program. This progress included preparing and publishing the following determinations:
Our expeditious progress also includes work on listing actions that we funded in FY 2010 and FY 2011 but have not yet been completed to date. These actions are listed below. Actions in the top section of the table are being conducted under a deadline set by a court. Actions in the middle section of the table are being conducted to meet statutory timelines, that is, timelines required under the Act. Actions in the bottom section of the table are high-priority listing actions. These actions include work primarily on species with an LPN of 2, and, as discussed above, selection of these species is partially based on available staff resources, and when appropriate, include species with a lower priority if they overlap geographically or have the same threats as the species with the high priority. Including these species together in the same proposed rule results in considerable savings in time and funding, when compared to preparing separate proposed rules for each of them in the future.
We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, these actions described above collectively constitute expeditious progress.
The meltwater lednian stonefly will be added to the list of candidate species upon publication of this 12-month finding. We will continue to monitor the status of this species as new information becomes available. This review will determine if a change in status is warranted, including the need to make prompt use of emergency listing procedures.
We intend that any proposed listing action for the meltwater lednian stonefly will be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Montana Field Office.
The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the Peary (
To allow us adequate time to conduct this review, we request that we receive information on or before June 6, 2011. After this date, you must submit information directly to the office listed in the
You may submit information by one of the following methods:
•
•
We will post all information received on
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171; facsimile 703-358-1735. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
When we make a finding that a petition presents substantial information indicating that listing a species or subspecies may be warranted, we are required to promptly review the status of the species (conduct a status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on these two subspecies from governmental agencies (including Canadian national and provincial governments), local indigenous people of Canada (who also may be acknowledged as Native American or Aboriginal tribes), the scientific community, industry, and any other interested parties. We seek information on:
(1) Each subspecies' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns, particularly regarding their seasonal migrations;
(d) Historical and current population levels, and current and projected population trends;
(e) Potential threats to each subspecies such as mining, resource extraction, or other threats not identified; and
(f) Past and ongoing conservation measures for each subspecies or their habitat.
(2) The factors that are the basis for making a listing determination for a species or subspecies under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of their habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes, particularly data on hunting;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting their continued existence.
(3) The potential effects of climate change on each subspecies and its habitat.
Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your information concerning this status review by one of the methods listed in the
Information and supporting documentation that we received and used in preparing this finding, will be available for you to review at
Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly review the status of the species, which is subsequently summarized in our 12-month finding.
In considering what factors might constitute threats, we look beyond the exposure of the species to determine whether the species responds to the factor in a way that causes actual impacts to the species and we look at the magnitude of the effect. If there is exposure to a factor, but no response, or only a beneficial response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant the factor is. If the factor is significant, it may drive or contribute to the risk of extinction of the species such that the species warrants listing as threatened or endangered as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the information in the petition is substantial. The information must include evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.
On September 15, 2009, we received a petition (also dated September 15, 2009), from the International Fund for Animal Welfare (hereafter referred to as petitioner) requesting that two subspecies of barren-ground caribou (
Banfield's 1961 taxonomic characterization listed nine subspecies of caribou (
Also in 2004, COSEWIC clarified that the Dolphin and Union population of the barren-ground caribou (
Both subspecies live in an ecological grazing system in which abiotic factors such as snow, rain, and ice largely determine their fate (COSEWIC 2004, p. 54). Food shortages can have a significant effect on caribou populations in these ecosystems. In the winter of 1973-1974, both subspecies experienced a population crash—freezing rain created sheets of ice, forming a barrier that covered the caribou's food sources and subsequently caused mass starvation (Miller
With an average total body length of 1.7 meters (m) (5.6 feet (ft)), the Peary caribou is relatively small and short when compared to other caribou species (COSEWIC 2004, pp. 9-10).
Peary caribou are endemic to the Queen Elizabeth Islands in northeastern Canada, in the provinces of Nunavut and the Northwest Territories. They exist in the Canadian Arctic Islands and coastal Greenland, but live mainly on the islands of the Canadian archipelago. The four populations of Peary caribou are generally delineated as follows: (1) Queen Elizabeth Islands, (2) Banks
The historical population and population trends are difficult to estimate due to differences in survey methodology, the remoteness of their island habitat, and the movements of Peary caribou between islands, and the taxonomic uncertainty prior to 2004. An assessment completed in 1991 indicated that between 1961 and 1987 the population of Peary caribou likely decreased by 86 percent (Miller 1991). COSEWIC further estimates that in the last 40 years, Peary caribou have declined 84 percent (COSEWIC 2004, pp. 36-37). In 2004, the total population estimate for Peary caribou was 7,890 individuals, including calves (COSEWIC 2004, p. 62). Although population estimates for the Peary caribou have been typically unreliable, in part due to the remoteness of the species, the 2004 estimate is believed to be fairly accurate.
Peary caribou migrate between the various islands based on availability of vegetation, and may recolonize islands that were abandoned in previous years (Ferguson and Messier 2000, p. 173). They have been documented migrating up to 450 km (280 mi) between islands in search of food and calving grounds (COSEWIC 2004, pp. 19, 30). Peary caribou migrate from northwestern Victoria Island to the Minto Inlet area (Gunn and Fournier 2000, pp. 15-57). However, some caribou remain faithful to one particular island despite the absence of food sources (Miller 2002 in COSEWIC 2004, p. 30). It is unclear why some caribou migrate and others do not, but the majority of caribou engage in some degree of migration.
As of 2004, the Peary caribou is assessed as “endangered” by the Canadian Government (COSEWIC 2004, p. 19). Neither subspecies addressed in this finding is listed on any appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Caribou are protected by land claim agreements within Canada, and hunts are managed by regulatory entities such as the Nunavut Wildlife Management Board (NWMB) and hunting and trapping associations (COSEWIC 2004, p. 61). Native tribes who hunt caribou for subsistence have voluntarily placed moratoriums on hunts in the past; as of 2004, a moratorium was still in place. Peary caribou have been assessed as endangered since 1996 by the International Union for Conservation of Nature (IUCN).
The Dolphin and Union caribou is generally larger than Peary caribou but smaller than the mainland population of barren-ground caribou (
The Dolphin and Union caribou primarily reside on the southern part of Victoria Island and its range does not overlap with Peary caribou. Seasonally, they cross the frozen ice of the Dolphin and Union Strait to winter on the mainland. Their range consists of the lower part of Victoria Island (excluding northwestern Victoria Island), and is estimated to be 195,417 km
A 1922 estimate (Anderson, cited in COSEWIC 2004, p. 41) indicated that between 100,000 and 200,000 caribou migrated across the Dolphin and Union Strait to Victoria Island. Using other caribou population densities as a proxy, Manning (1960), indicated that 100,000 was likely a more realistic estimate. In 1973, both subspecies experienced a population crash due to freezing rain and sheets of ice (Miller et al. 1977). In 1980, a survey by Jackimchuck and Carruthers indicated that there were approximately 3,400 Dolphin and Union caribou on Victoria Island (COSEWIC 2004, p. 41). Gunn et al. (2000, p. 43) estimated the southern Victoria Island population to be 14,600 caribou in 1994 and 27,800 caribou in 1997. This herd does not appear to have been surveyed since then. The 2004 COSEWIC report indicates the population is estimated to be approximately 25,000 and the population appears to be stable or increasing (pp. viii and 15).
As of 2004, the Dolphin and Union caribou is assessed as “Special Concern” (COSEWIC 2004, p. 19) by the Canadian Government. It is not listed on any CITES appendices. Hunts are managed by boards such as the NWMB, the Canadian Department of Environment, and hunting associations (COSEWIC 2004, p. 61). Indigenous tribes who hunt caribou for subsistence have voluntarily placed moratoriums on hunts in the past. IUCN in 2008 listed
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
Following is a threats assessment in which we evaluate whether any of these factors threaten or endanger these two subspecies. This evaluation is specific to each subspecies unless specified that the evaluation is for both subspecies. In making this 90-day finding, we evaluated whether information regarding threats to both the Peary and Dolphin and Union subspecies, as presented in the petition and based on other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The petitioner asserts that global climate change due to global warming presents the largest threat to the Peary caribou's habitat in that previously frozen water surrounding the Queen Elizabeth Islands will become navigable to large ships associated with shipping and oil exploration and these ships will threaten caribou movement. In this finding, we will evaluate climate change threats under Factor E.
The petitioner does not indicate that overutilization for commercial, recreational, scientific or educational purposes is currently contributing to the decline of the Peary caribou. Nor do we have other data in our files that this factor is a threat to the Peary caribou. Therefore, we determine that the petition does not present substantial information that the petitioned action may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.
The petitioner acknowledged that disease is not thought to be a significant factor affecting either subspecies of caribou addressed in this finding. We concur with the petitioner that, based on the information provided with the petition and information available in our files, disease is not currently a threat to either subspecies.
The petitioner asserted that if climate change caused significant increases in snowfall, caribou could be more susceptible to attacks by wolves. We acknowledge that caribou are preyed upon by various predators such as wolves. However, information presented in the petition and available in our files does not indicate that the effect of increased predation by predators would increase such that it rises to the level of a threat to either subspecies (Miller 1998, in COSEWIC 2004, p. 50; Gunn 2005, pp. 10-11, 39-41). Therefore, we determined that the petition does not present substantial information that the petitioned action may be warranted due to disease or predation. However, all factors, including threats from disease or predation, will be evaluated when we conduct our status review.
The petitioner asserts that the regulatory mechanisms with respect to climate change are inadequate to protect both the Peary caribou and the Dolphin and Union caribou. Because this factor is applicable to both subspecies, this evaluation under Factor D applies to both subspecies in this finding. The petitioner indicates that the inadequacy of existing regulatory mechanisms with respect to global climate change is the gravest threat to the long-term survival of these two subspecies. The petitioner discussed the ineffectiveness of various regulatory mechanisms associated with climate change such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and United States climate initiatives.
Currently, there are no regulatory mechanisms in place that effectively address climate change and associated changes in habitat or sea-ice or greenhouse gas (GHG) emissions. International efforts to address climate change began with the UNFCCC, which was adopted in May 1992. The UNFCCC's objective is stabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, but it does not impose any mandatory and enforceable restrictions on GHG emissions. The Kyoto Protocol became the first agreement to set GHG emissions targets for signatory counties, but the targets are not mandated. Current international efforts to regulate GHG emissions are focused on emissions targets, monitoring requirements, and voluntary actions. None of these mechanisms establish mandatory requirements limiting the amount of GHG that may be emitted. For several decades, the surface air temperatures in the Arctic have warmed at approximately twice the global rate (Christensen
The petitioner provided information with the petition that states that climate change may result in irregular winter events such as freezing rain or heavy snow accumulation, which may not allow caribou access to vegetation (COSEWIC 2004, pp. 51-52). Both subspecies of caribou forage by pushing snow away from vegetation and by breaking through hard-packed snow to reach vegetation. If these conditions occur, both species could suffer widespread starvation (Miller and Gunn, 2003, p. 6). Energetic costs will increase if they have to travel greater distances to locate food. Over time, poor body condition could lead to lower reproductive rates, greater susceptibility to disease or predation, and possibly higher mortality rates. Currently, there are no regulatory mechanisms in place that effectively address a warming climate and its consequences for both subspecies of caribou addressed in this finding due to associated changes in habitat. Accordingly, we conclude that there is substantial information presented in the petition or readily available in our files to indicate that regulatory mechanisms in place may be inadequate to effectively address changes in habitat or sea-ice habitat relied upon by these two subspecies of caribou. We find that the information provided presents substantial information indicating that the petitioned action may be warranted for both subspecies due to increased snowfall events and freezing rain based on the inadequacy of existing regulatory mechanisms. We will evaluate this factor further for each subspecies during the status review.
The petitioner states that global warming due to global climate change presents the largest threat to both subspecies of caribou. The petitioner asserts that the Arctic is warming more rapidly than other areas on the globe. If warming occurs, there may be less sea ice available for crossing from one island to another in search of vegetation (COSEWIC 2004, pp. 54-55; Atkinson
Low genetic diversity was an issue raised by the petitioner as a stressor on the subspecies. We will further evaluate this during the status review.
The petitioner states that the waters of the Dolphin and Union Strait will become navigable to large ships in the near future based on decreased sea ice due to global warming, and that these ships will disrupt caribou movement. The petitioner suggested that shipping traffic has, in the past, interrupted the migration of the Dolphin and Union caribou. Other than expression of concern, the supporting information did not indicate that this increase in shipping traffic has had a negative impact on the subspecies (COSEWIC 2004, pp. 46-47). The petitioner also suggests that caribou will be adversely affected by the increasing development associated with shipping and oil exploration. Although oil development and increased shipping may occur, there is no evidence that it will have a significant effect on caribou. After reviewing the information provided in the petition and available in our files, it does not support the claim that oil exploration, and an increase in shipping, development, and related human activity will affect the Dolphin and Union caribou's habitat.
The petitioner provides no other information addressing Factor A, and we have no information in our files indicating that listing the subspecies due to the present or threatened destruction, modification, or curtailment of the Dolphin and Union caribou's habitat or range may be warranted. Therefore, we find that the petition does not present substantial information to indicate that the petitioned action may be warranted based on the present or threatened destruction, modification, or curtailment of its habitat or range.
The petitioner identifies hunting of the Dolphin and Union caribou as a possible factor in the decline of this subspecies. The petition reports that this subspecies is hunted by the Inuit for subsistence, and it is also hunted commercially along the mainland on the north coast bordering the Dolphin and Union Strait. Various management units such as the NWMB, the Wildlife Management Advisory Council for the Inuvialuit Settlement Region in the Northwest Territories, the Canadian Department of Environment, and the Inuit and Inuvialuit tribes play a role in the regulation of hunting of the various caribou populations at the larger scale. At more local scales, committees and trapper associations are involved in monitoring caribou. Hunting has not been implicated as a causative factor in any of the major caribou die-offs. The hunting of this subspecies appears to be sufficiently managed by the local hunting boards, the local indigenous peoples of Canada such as the Inuit and Inuvialuit, who are allowed to hunt caribou for subsistence. Based on the information available in the petition and in our files, hunting does not appear to be causing a decline in the Dolphin and Union caribou.
The petitioner did not indicate any other threats under this factor. After reviewing the information provided in the petition and available in our files, we find that the information provided does not present substantial information indicating that the petitioned action may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.
Refer to the discussion under Factor C above for Peary caribou for additional information. Based on the information provided in the petition and available in our files, we find that the petition does not present substantial information indicating that listing the Dolphin and Union caribou as endangered or threatened may be warranted due to disease or predation.
Refer to the discussion under Factor D above for Peary caribou for additional information. After reviewing the information provided in the petition and available in our files, we find that the information provided presents substantial information indicating that listing the Dolphin and Union caribou as endangered or threatened may be warranted due to the inadequacy of existing regulatory mechanisms.
The petitioner states that global climate change presents the greatest threat to the Dolphin and Union caribou's habitat. We currently do not know the extent of the subspecies' capacity to adapt to potential changes in its habitat resulting from climate change. However, there is an upward trend in temperature which may decrease sea ice in the Dolphin and Union Strait (refer to discussion above). This subspecies crosses the sea ice in the Strait seasonally, and this decrease in sea ice may affect the species' migration patterns and availability to access food sources. Seasonally, herds congregate at the edge of the Strait while waiting for the ice to form. Energetic costs will increase if they have to travel greater distances to locate food sources, and foraging efficiency is reduced. Over time, poor body condition could lead to lower reproductive rates, greater susceptibility to disease or predation, and ultimately higher mortality rates. The loss of seasonal ice across the Dolphin and Union Strait could reduce access to traditional foraging areas and it may increase competition among individuals for food resources in areas close to staging grounds. After reviewing the information provided in the petition and available in our files, we find that the information provided presents substantial information indicating that the petitioned action may be warranted due to changes in sea ice (also refer to the discussion under Factor E above for Peary caribou). We intend to investigate the effects of climate change, particularly the changes in sea ice, on the Dolphin and Union caribou during the status review.
On the basis of our evaluation under section 4(b)(3)(A) of the Act, we find that the petition presents substantial scientific or commercial information indicating that listing both the Peary and Dolphin and Union caribou as endangered or threatened may be warranted. This finding is based on information evaluated under factors D and E for both subspecies. Because we have found that the petition presents substantial information indicating that listing these two subspecies may be warranted, we are initiating a status review to determine whether listing these two subspecies of caribou as endangered or threatened under the Act is warranted.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to revise vessel identification requirements for U.S. vessels based out of the U.S. West Coast that fish for highly migratory species. The new measures would allow these vessels to be marked in accordance with the international standards that were implemented by NMFS for vessels fishing on the high seas in the Area of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention Area) in early 2010. Currently, the domestic marking requirements for some U.S. West Coast vessels do not comport with these international standards. The new measures would require vessels that fish in the Convention Area to display their International Telecommunication Union Radio Call Sign (IRCS), or if an IRCS has not been assigned to the vessel, the vessel would be required to display its official number, preceded by the characters “USA-”. The intent of the proposed action is to bring the existing vessel identification requirements into conformity with the binding vessel identification requirements adopted by the Western and Central Pacific Fisheries Commission (WCPFC).
Comments must be received by 5 p.m., local time, on May 5, 2011.
You may submit comments, identified by 0648-BA49, by any one of the following methods:
•
•
•
NMFS 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.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS SWR at the address above, and by e-mail to
Heidi Hermsmeyer, NMFS SWR, 562-980-4036.
The WCPFC was established under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention). The Convention's objective is to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean, including measures to manage and conserve tunas and to minimize impacts on protected resources, such as sea turtles and seabirds. Figure 1 is a map of the Convention Area. The Convention Area includes the operational areas of U.S. troll, pole-and-line, tuna purse seine, and pelagic longline fisheries.
Under the Convention, vessels that are authorized to fish on the high seas in the Convention Area are required to be identified in accordance with the Standard Specifications for the Marking and Identification of Fishing Vessels of the Food and Agriculture Organization of the United Nations. By final rules published on January 21, 2010 (75 FR 3335 and 3416), NMFS implemented those standards for U.S. fishing vessels under the authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFCIA, Pub. L. 109-479, sec. 501,
This proposed rule is consistent with the requirements established under the WCPFCIA as it would revise existing vessel identification regulations at Title 50, Code of Federal Regulations, §§ 660.704 and 300.173 to conform to the international standards. United States vessels that are issued a permit under 50 CFR 660.707,
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act (16 U.S.C. 1854(b)(1)(A)), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. All vessels having the potential to be affected by this action are considered to be small entities under the current Small Business Administration definition of small fish-harvesting businesses (gross receipts not in excess of $ 4.0 million).
The proposed rule would result in an estimated one-time cost to each vessel of around $10 dollars to conform to the new vessel marking requirements. It is estimated that at a maximum 125 vessels would be required to change their markings (estimate based on the current number of active vessels targeting HMS on the high seas that have the potential to fish in the WCPFC Convention Area). The majority, if not all, of these vessels would be troll and pole-and-line vessels targeting albacore tuna. The estimated 2008 average gross revenue per vessel for the troll and pole-and-line fisheries was approximately $52,000. Average gross revenues per vessel for other fisheries that have the potential to be affected would be equal to or greater than the estimate for the troll and pole-and-line fisheries. Therefore, the cost of vessel marking for those vessels represents less than one percent of gross revenues per vessel on average. It is highly unlikely that this action would result in any vessel's costs exceeding three percent of gross revenues (which would translate to an estimated cost of $1,550 for the troll and pole-and-line fisheries).
This proposed action contains no fishery management controls that affect the operations of the fishery, other than vessel identification. Thus, significant impacts to the profitability of a substantial number of small entities are not anticipated. This rule does not duplicate, overlap, or conflict with other Federal rules. There are no disproportionate economic impacts from this rule based on home port, gear type, or relative vessel size. The Pacific Fishery Management Council (Council) was briefed on this issue at their September 2008 meeting; in a letter dated November 20, 2008, the Council formally recommended that NMFS revise regulations accordingly.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the NMFS Southwest Regional Office (SWR) has determined that, for the reasons described above, this rule will not have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under control numbers 0648-0361 and 0648-0492. Public reporting burden for vessel identification requirements under 0648-0361 is estimated to average 45 minutes per response, and public reporting burden for vessel marking requirement under 0648-0492 is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS Southwest Regional Office (
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Administrative practice and procedure, Fisheries, Reporting and recordkeeping requirements.
Administrative practice and procedure, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR parts 300 and 660 are proposed to be amended as follows:
1. The authority citation for part 300 continues to read as follows:
16 U.S.C. 2431
2. Section § 300.173 is revised to read as follows:
Each U.S. vessel fishing under the Treaty must be marked for identification purposes, as follows:
(a) A vessel used to fish on the high seas within the Convention Area as defined in § 300.211 must be marked in accordance with the requirements at § 300.14 and 300.217.
(b) A vessel not used to fish on the high seas within the Convention Area as defined in § 300.211 must be marked in accordance with either:
(1) Sections 300.14 and 300.217, or
(2) The vessel's name and U.S. Coast Guard Documentation number (or if not documented, the state registration number) followed by the letter U must be prominently displayed where they will be clearly visible both from the air and from a surface vessel. Numerals and the letter U must meet the size requirements of § 660.704 of this title. Markings must be legible and of a color that contrasts with the background.
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. Section 660.704 is revised to read as follows:
(a)
(1) A vessel used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with the requirements at § 300.14 and 300.217 of this title.
(2) A vessel not used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with either:
(i) Sections 300.14 and 300.217 of this title, or
(ii) The vessel's official number must be affixed to the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck so as to be visible from enforcement vessels and aircraft. The official number must be
(b) [Reserved].
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS is issuing this proposed rule for the 2011 Pacific whiting tribal fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP) and the Magnuson Stevens Fishery Conservation and Management Act (Magnuson Act). Washington coastal treaty Indian tribes mean the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. This proposed rule establishes an interim tribal allocation of Pacific whiting for the 2011 season only, based on discussions with the Makah and Quileute tribes and Quinault Indian Nation regarding their fishing plans. At the March, 2011 Pacific Fishery Management Council (Council) meeting, the Council recommended a coastwide Optimum Yield (OY) of 393,751 mt. This would result in a U.S. OY of 290,903 mt. The proposed rule, based on communications to date with the tribes, proposes a tribal allocation of 66,908 mt, for 2011 only, given the Council's recommended OY.
Comments on this proposed rule must be received no later than 5 p.m., local time on April 19, 2011.
You may submit comments, identified by RIN 0648-BA95 by any one of the following methods:
•
•
•
NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Kevin C. Duffy (Northwest Region, NMFS),
This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at
The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” These procedures employed by NOAA in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NMFS can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.
Since 1996, NMFS has been allocating a portion of the U.S. OY of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the whiting OY before allocation to the non-tribal sectors. To date, there has been no determination of the total amount of whiting for which the tribes are entitled to fish under their treaty right. Therefore, allocations to date have been on an interim basis, and are not considered to set precedent with respect to the amount of the treaty right.
To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. From 1999 until 2009, the tribal allocation was based on a statement of need for their tribal fishery. In recent years prior to 2009, the specific tribal amount was generally, although not always, determined using a sliding scale relative to the U.S. whiting OY of between 14 and 17.5 percent, depending on the specific OY determined by the Council. In general, years with a relatively low OY resulted in a tribal allocation closer to 17.5 percent, and years with a relatively high OY result in a tribal allocation closer to 14 percent.
Between 2000 and 2008, the U.S. OY ranged from a high of 269,545 mt in 2008 to a low of 129,600 mt in 2002. In absolute amounts, the tribal allocation from 2000 to 2008 ranged from a high of 35,000 mt in 2005, 2007, and 2008 to a low of 22,680 mt in 2002.
For the 2009 fishery, the Quileute Tribe first stated their intent to participate in the fishery. That year, the U.S. OY was 135,939 mt, and the tribal allocation was set at 50,000 mt (36.78 percent of the U.S. OY). A set-aside of 42,000 mt was established for the Makah, and an 8,000 mt set-aside was established for the Quileute. The final rule in 2009 anticipated the Makah managing their fisheries to achieve a harvest of no more than 42,000 mt, and the Quileute managing their fisheries to achieve a harvest of no more than 8,000 mt. For 2010, both the Makah and
NMFS and the co-managers have been involved in a process designed to determine the long-term tribal allocation for whiting. At the September 2008 Council meeting, NMFS, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NMFS would pull together the current information regarding whiting, circulate it among the co-managers, seek comment on the information and possible analyses, and then prepare analyses of the information to be used by the co-managers in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a total tribal allocation for incorporation into the Council's planning process for the 2010 season. The further goal was to provide the tribes the time and information to develop an inter-tribal allocation or other necessary management agreement. The process has been moving forward but final agreement on a long-term tribal allocation has not been reached. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers have met to discuss this information and plan further meetings. During 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. In addition, NMFS responded in writing to requests from the tribes for clarifications on the paper and requests for additional information. Additionally, NMFS met with each of the tribes in the fall of 2010 to discuss the paper and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting. Those discussions are ongoing and it is not anticipated that these issues will be resolved prior to the start of the 2011 Pacific whiting tribal fishery.
Over the last three months, NMFS has met individually with each of the coastal tribes that have expressed a potential interest in fishing for whiting in 2011 to discuss this year's tribal fishery as well as the process for negotiating a long-term tribal allocation. For 2011, the Makah and the Quileute Tribes have indicated that they plan to participate in the 2011 fishery. The Quinault Indian Nation informed NMFS that while they are still pursuing entering the fishery in 2011, they have not yet made a final decision. Because the co-managers have not negotiated a long term tribal allocation, NMFS is again moving forward with this proposed rule as an interim measure to address the allocation for and management of the 2011 tribal Pacific whiting fishery. As with the 2010 allocation, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.
The proposed rule would be implemented under authority of Section 305(d) of the Magnuson Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of the Washington tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. (
At the March, 2011 Pacific Fishery Management Council (Council) meeting, the Council recommended a coastwide Optimum Yield (OY) of 393,751 mt. This would result in a U.S. OY of 290,903 mt. The Makah Tribe has requested the opportunity to harvest up to 17.5 percent of the U.S. OY of whiting in 2011. The Quileute Tribe has stated that it plans to have two boats participating in the 2011 fishery, and that it believes that 8,000 mt of whiting per boat is necessary to ensure the economic viability of each boat.
Given past tribal allocations, the recent conversations with the Quinault Indian Nation, the Quileute Tribe, and the Makah Tribe, and the whiting U.S. OY recommendation from the Pacific Council, NMFS is proposing a 2011 interim tribal allocation of no higher than 66,908 mt, which is 23.00 percent of the recommended U.S. OY. NMFS is still in communication with the tribes on the 2011 interim allocation and the final allocation amount may differ from this proposal. In addition, NMFS has yet to consider and adopt the Council's recommendation for the U.S. OY of whiting. NMFS believes the proposed amount will allow for the anticipated 2011 participation in the fishery by the Makah and Quileute tribes, and for the potential 2011 participation by the Quinault Indian Nation.
Regarding the 2011 tribal whiting allocation, NMFS believes the proposed allocation, although higher than the absolute amounts of prior tribal allocations, is well within the range of past percentages (12.08-36.78 percent). As described above, while further negotiation on the long-term tribal allocation of Pacific whiting will occur in 2011, NMFS believes that current knowledge on the distribution and abundance of the coastal Pacific whiting stock supports a conclusion that the proposed tribal allocation of 66,908 mt lies within the range of the tribal treaty right to Pacific whiting.
At this time, NMFS has preliminarily determined that the management measures for the 2011 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, will take into account the data, views, and comments received during the comment period.
NMFS has initially determined that this proposed rule is not significant for purposes of Executive Order 12866.
An Initial Regulatory and Flexibility Act (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 summary of the analysis follows. A copy of this analysis is available from NMFS (
Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish
In recent years the number of participants engaged in the Pacific whiting fishery has varied with changes in the whiting OY and economic conditions. Pacific whiting shoreside vessels (26 to 29), mothership processors (4 to 6), mothership catcher vessels (11 to 20), catcher/processors (5 to 9), Pacific whiting shoreside first receivers (8 to 16), and five whiting vessels participating in the Makah portion of the tribal whiting fishery, are the major units of this fishery. For 2011, there may be additional vessels participating in the tribal whiting fishery. NMFS records suggest the gross annual revenue for each of the catcher/processor and mothership operations participating in the Pacific coast whiting fishery exceeds $4.0 million. Therefore, they are not considered small businesses. NMFS records also show that 10-43 catcher vessels have taken part in the mothership fishery on an annual basis since 1994. These companies are all assumed to be small businesses, although some of these vessels may be affiliated with larger processing companies. Since 1994, 26-31 catcher vessels have annually participated in the shoreside whiting fishery. These companies are all assumed to be small businesses, although some of the vessels may be affiliated with larger processing companies. Vessels participating in the tribal whiting fishery are presumed to be small businesses, whereas the Tribes are presumed to be small government jurisdictions.
Pacific whiting has grown in importance, especially in recent years. Through the 1990s, the volume of Pacific whiting landed in the fishery increased. In 2002 and 2003, landings of Pacific whiting declined due to information showing the stock was depleted and the subsequent regulations that restricted harvest in order to rebuild the species. Over the years 2003-2007, estimated Pacific whiting ex-vessel values averaged about $29 million. In 2008, these participants harvested about 248,000 mt of whiting worth about $63 million in ex-vessel value based on shoreside ex-vessel prices of $254 per ton—the highest ex-vessel revenues and prices on record. In comparison, the 2007 fishery harvested about 224,000 mt worth $36 million at an average ex-vessel price of about $160 per mt. In 2009, tribal and non-tribal fleets harvested about 122,000 mt of Pacific whiting, worth approximately $14 million. During 2009, ex-vessel prices declined to about $119.00 per ton, presumably due to the worldwide recession. For 2010, the preliminary ex-vessel price returned to $160.00 per mt, leading to approximately $27 million in revenues, based on a total harvest of 170,000 mt.
For 2010, the tribes were initially allocated 49,939 mt. In September and October, NMFS reapportioned a total of 16,000 mt from the tribal allocation to the non-tribal shorebased, mothership, and catcher processor sectors.
Based on conversations with the tribes regarding their intent for the 2011 tribal whiting fishery, a proposed tribal allocation of 66,908 mt is being considered. Using the average ex-vessel price of $160.00 per ton, the ex-vessel value is estimated to be approximately $10,705,280.
NMFS did not consider a broad range of alternatives to the proposed allocation because the tribal allocation is based primarily on the requests of the tribes for a level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate here, where based on the information available to NMFS the requested amount appears to be within the amount to which the tribes are entitled. A higher amount would arguably be within the scope of the treaty right, but would unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory structure provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2011, inconsistent with NMFS' obligation to manage the fishery consistent with the tribes' treaty rights. Given that the Makah and Quileute tribes have made specific requests for allocations in 2011, this alternative received no further consideration.
With the implementation of Fishery Management Plan amendments 20 and 21, the ability to reapportion Pacific whiting from tribal to non-tribal fisheries was eliminated. Similarly, unharvested whiting allocated to the non-tribal shoreside, mothership, and catcher-processor sectors cannot be reapportioned among these sectors. So, unlike 2010, the regulations do not provide NMFS a specific mechanism to reapportion unharvested tribal whiting to the non-tribal sectors, and will not be able to reapportion among the non-tribal sectors. Pending markets, available bycatch, and the ability of tribal fleets to develop the capacity to harvest the tribal allocation may result in unharvested Pacific whiting because there is no regulatory mechanism to reapportion. Similarly, there may be unharvested Pacific whiting in the other sectors as well.
Tribal fisheries include a mixture of activities similar to the non-tribal fisheries, where tribal fisheries will deliver shoreside for processing or to a mothership for at-sea processing. The processing facilities that the tribes use also process fish harvested by non-tribal fisheries. Increased allocations to tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) implies decreased allocations to non-tribal harvesters (a mixture of small and large businesses).
There are no reporting, recordkeeping or other compliance requirements in the proposed rule.
No Federal rules have been identified that duplicate, overlap, or conflict with this action.
NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in
NMFS reinitiated a formal section 7 consultation under the ESA in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.
NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 fish over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000 fish.
Since 1999, annual Chinook bycatch has averaged about 8,450 fish. The Chinook ESUs most likely affected by the whiting fishery has generally improved in status since the 1999 ESA section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs.
Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
The Southern Distinct Population Segment (DPS) of green sturgeon was listed as threatened under the ESA (71 FR 17757, April 7, 2006). The southern DPS of Pacific eulachon was listed as threatened on March 18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated consultation on the fishery, including impacts on green sturgeon, eulachon, marine mammals, and turtles. After reviewing the available information, NMFS has concluded that, consistent with Sections 7(a)(2) and 7(d) of the ESA, the proposed action would not jeopardize any listed species, would not adversely modify any designated critical habitat, and would not result in any irreversible or irretrievable commitment of resources that would have the effects of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. NMFS has met and continues to meet with tribal officials and/or senior staff to address both their short and long term interests regarding Pacific whiting.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. In § 660.50 paragraph (f)(4) is revised to read as follows:
(f) * * *
(4)
Notice of public meetings.
Notice is hereby given of public meetings of three committees of the Assembly of the Administrative Conference of the United States (ACUS). Each committee will meet to discuss recommendations for consideration by the full Conference. Complete details regarding each committee's meeting, related research reports, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found in the “Research” section of the ACUS Web site, at
Comments may be submitted by e-mail to
The meetings will be held at 1120 20th Street, NW., Suite 706 South, Washington, DC 20036.
Designated Federal Officer for the individual committee, ACUS, 1120 20th Street, NW., Suite 706 South, Washington, DC 20036; Telephone 202-480-2080.
The Committee on Rulemaking will meet to consider a draft recommendation concerning legal issues agencies face in conducting e-Rulemaking.
The Committee on Regulation will meet to consider a draft recommendation addressing various issues associated with the timing, availability, confidentiality, and impact of comments submitted during agency rulemakings.
The Committee on Adjudication will meet to consider a draft recommendation on the use of video hearings by Federal agencies, examining the costs and benefits of video hearings as they are currently being used and the possibilities for expanding their use by agencies. The Committee on Adjudication will also hear from Lenni B. Benson and Russell Wheeler, consultants for the ACUS study on Immigration Adjudication, who will provide information about the plan for the study and receive comments from the committee.
Forest Service, USDA.
Correction—Notice of intent to prepare an environmental impact statement.
On March 31, 2006 the Malheur National Forest published a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) for a similar project (
Comments concerning the scope of the analysis must be received by May 5, 2011. The draft environmental impact statement is expected March 2012 and the final environmental impact statement is expected March 2013.
Send written comments to Teresa Raaf, Forest Supervisor, Malheur National Forest, P.O. Box 909, John Day, OR 97845. Comments may also be sent via facsimile to 541-575-3002. Electronic comments in acceptable plain text (.txt), rich text (.rtf), or Word (.doc) may be submitted to:
Carole Holly, Project Leader, Phone 541-575-3026 or
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 Time, Monday through Friday.
Invasive plants displace or alter native plant communities and cause
The Malheur National Forest has been treating invasive plants without the authorization to rapidly respond to new infestations or the use of herbicides (an exception is that herbicides have been used in spot treatments totaling 10-20 acres/year along roads on the former Snow Mountain Ranger District—Ochoco National Forest). However, many invasive target species require herbicides for effective treatment. Monitoring has shown physical treatments alone cannot control invasive species. A previous attempt to authorize the use herbicides was made, but the project was litigated and enjoined. In December 2002, the U.S. District Court (Blue Mountain Biodiversity Project v. US Forest Service, CV 01-703-HA) concluded that the Malheur National Forest Environmental Assessment for invasive plant control was insufficient because it failed to address new information regarding herbicides and the causes of the spread of invasive plants.
The Pacific Northwest Region Invasive Plant Program Preventing and Managing Invasive Plants FEIS (referred to as the R6 2005 FEIS) (USDA Forest Service, 2005a) and Record of Decision for Invasive Plant Program Management (referred to as the R6 2005 ROD) (USDA Forest Service 2005b). Vectors and causes of invasive plant spread were explored in detail and new standards for prevention, site treatment and restoration, and an updated list of herbicides for effectively responding to invasive plant threats were added.
The prevention standards have been applied to land use decisions made since the R6 2005 ROD was adopted. However, the treatment and restoration part of the Malheur invasive plant control program is not consistent with the 2005 standards and needs to be updated. New and existing invasive plant populations on the Malheur National Forest require more timely, effective and cost-efficient treatment actions to comply with the intent of the R6 2005 ROD (which was incorporated into the Malheur Forest Plan).
In addition, after the R6 2005 ROD signed, a new herbicide (aminopyralid) became available. Aminopyralid (also known as Milestone TM) is specifically labeled for treatment of invasive plants in forested settings. This herbicide is effective on hard to control invasive plant species such as hawkweed, knapweed, and Canada thistle. It is preferred by invasive plant specialists at the state and county level.
The MNF scoped on this project previously (a (NOI) to prepare an EIS requesting public input was published in the
The Proposed Action is to treat invasive plants using integrated methods including chemical (herbicides and adjuvants), physical treatments (mechanical and manual treatment), and biological controls. Treatment could be anywhere on Forest Service system lands including rangelands, wilderness, timber harvest areas, along roads and road rights-of-way (including decommissioned roads), along trail routes, at dispersed and developed recreation sites, and on other disturbed sites (
The Proposed Action would treat existing infestations according to Forest Plan standards. Specific project design features would be implemented to minimize unintended, adverse effects to non-target plants, animals, water, and people. New invasive plants detected on the Forest (beyond the current inventory) would also be treated using an “Early Detection and Rapid Response (EDRR)” process.
Ground based herbicide application methods would be used based on accessibility, topography, and the size of treatment areas. No aerial treatment is proposed. Spot and selective spraying where individual and groups of plants are targeted would be the primary method of application; however some herbicide broadcasting may occur from ATV or trucks. Broadcast treatments would occur when necessary based on the size, density or distribution of target species. ATVs may be used to facilitate broadcast in otherwise inaccessible areas. Ongoing monitoring of each site would dictate the treatment method, whether herbicides are needed, and the type of continued or follow-up treatments needed. Acreage treated would average up to 2,300 acres per year, with a total of 23,000 acres treated over the life of the project (about 10 years). Herbicide treatments would be done in accordance with label advisories, USDA Forest Service policies, and Forest Plan management direction. Specific design features would be applied to minimize or eliminate the potential for invasive plant treatments to adversely affect non-target plants, animals, human health, water quality, and aquatic organisms.
The R6 2005 ROD (now part of the Malheur Forest Plan) authorized the use of ten herbicide active ingredients. Each of the ten herbicides is known to be effective on the target species found on
A site-specific, non-significant amendment to the Malheur Forest Plan is also proposed to add an 11th herbicide, aminopyralid, to the list of authorized herbicides for use on the Forest to treat invasive plants. Aminopyralid was not labeled for wildland use in 2005; however, the R6 2005 ROD Standard 16 acknowledges that new herbicides may be added given proper analysis. Aminopyralid has undergone extensive risk assessment since 2005. It is proposed for use because it would increase the effectiveness of treatment for some broadleaf target species, and reduce potential adverse impacts, compared to herbicides authorized in the R6 2005 ROD. Aminopyralid is likely to be effective on a large proportion of the current target species acreage.
The Forest Service is considering an alternative of treating without the use of aminopyralid and only using the 10 herbicides approved in the R6 2005 ROD. The No Action alternative will also be considered, which would continue the current non-herbicide program on the Malheur National Forest.
The Responsible Official is the Malheur National Forest Supervisor.
The Forest Supervisor will make the following decisions based on the interdisciplinary analysis: (1) Whether or not to authorize site-specific invasive plant treatments using herbicides and other methods; (2) whether or not to implement an Early Detection and Rapid Response process for infestations that are detected over the next 5 to 15 years; (3) what mitigation measures (design features) are required and (4) what monitoring and adaptive management will occur.
The following issues were identified in scoping that occurred in 2006:
Pesticide application licenses will be required for those implementing this project. Pesticide Use Proposals for wilderness herbicide applications need to be signed by the Regional Forester; otherwise Pesticide Use Proposals are signed by the Forest Supervisor. This project may involve riparian herbicide application subject to a Department of Environmental Quality water quality permit.
This notice of intent initiates a new scoping process to guide the development of the environmental impact statement. Scoping comments from 2006 are part of the record and will be used to generate issues and alternatives for detailed study in the EIS. Scoping comments sent previously need not be re-sent; new comments are also welcome. No public meetings are planned.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, those who only submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR 215.
Forest Service, USDA.
Notice of meeting.
The Prince William Sound Resource Advisory Committee will meet in Whittier, Alaska. 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 review, discuss and select projects to be funded thru the Secure Rural Schools Act.
The meeting will be held April 22nd and April 23rd, 2011.
The meeting will be held on the 15th floor of the Begich Towers Inc. building located at 100 Kenai Street, Whitter, AK. Written comments should be sent to Teresa Benson P.O. Box 280, Cordova, AK 99574. 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 Cordova Ranger District (612 2nd Street, Cordova, AK) or the Glacier Ranger District (145 Forest Station Road, Girdwood, AK).
Teresa Benson, Designated Federal Official, c/o USDA Forest Service, P.O. Box 280, Cordova, Alaska 99574, telephone (907) 424-4742.
The meeting is open to the public. The following business will be conducted: The Prince William Sound Resource Advisory Committee (RAC) will be discussing and voting on proposals that have been received from communities of the Prince William Sound. The proposals that may receive funding would enhance forest ecosystems or restore and improve land health and water quality on the Chugach National
The public is welcome to attend the April 22-23 RAC meeting. Committee discussion is limited to Forest Service staff and Committee members. However, public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by April 21st will have the opportunity to address the Committee at those sessions.
This matter is before me upon a Recommended Decision and Order (“RDO”) of an Administrative Law Judge (“ALJ”), as further described below.
As discussed in the RDO, the allegations in this case stem from an investigation by the Bureau of Industry and Security (“BIS”) of a sale and (unlicensed) export of graphite rods and pipes from the United States to Pakistan, via the United Arab Emirates (“UAE”), in which Respondent Manoj Bhayana directly participated.
The transaction documentation included a mill test certificate certifying that the graphite being exported met the specifications for a type of graphite (CS grade extruded graphite) produced by UCAR Carbon Company, doing business as GrafTech International Ltd. (“UCAR/GrafTech”). As he later admitted, Respondent Bhayana knew that the exported graphite items were not UCAR graphite and had not been produced by UCAR/Graftech. He also knew that the mill test certificate, which was on UCAR/GrafTech letterhead, had been created at Ameri-Source, Inc. (“Ameri-Source”), not by UCAR/GrafTech. Respondent sent the mill test certificate to the freight forwarder to facilitate the export, which occurred in December 2003. RDO, at 4-5.
During the course of BIS's investigation of this matter, in a September 7, 2004 e-mail to a BIS Special Agent, Respondent denied having any knowledge of the origin of the mill test certificate. Following months of additional investigation, BIS executed a search warrant at SparesGlobal in November 2004. Bhayana was present and was interviewed by BIS Special Agents. During that interview, Respondent provided the mill test certificate in response to the Special Agents' questions about the exported items, knowing, but not informing the agents, that the certificate contained false and misleading information.
In a Charging Letter issued on January 15, 2010, BIS alleged that Respondent Bhayana had committed two violations of the Export Administration Regulations (“EAR” or “Regulations”).
Charge Two alleged, in full, as follows:
Bhayana made false and misleading representations and statements in the course of a BIS investigation. On or about September 8, 2004, a BIS Special Agent asked about the mill certificate relating to the Shipper's Export Declaration (SED) filed on December 2, 2003, and referenced in Charge 1 above. In an e-mailed response to the Special Agent, Bhayana stated: “The test certificate was provided by [our supplier] to us. We do not have any knowledge about its origin.” On or about November 3, 2004, Bhayana was again asked about the mill certificate during an in-person interview with BIS Special Agents, and again provided copies of this forged mill certificate to the Special Agents. During this interview, Bhayana also gave the BIS Special Agents a signed written statement referencing the mill test certificate specifications or “specs,” in which, he indicated, “These specs which are being submitted here [to the Special Agents] are the material specs which were shipped under this shipment.” In fact, Bhayana had worked with others to create the forged mill certificate falsifying the type of graphite rod being exported and knew that the certificate contained false information when he provided it to the Special Agents. When confronted later in the same interview by the Special Agents with evidence that the certificate had been forged, Bhayana signed a second written statement. In this second signed statement, Bhayana admitted that his earlier statements to the Special Agents were false. Specifically, Bhayana admitted that SparesGlobal's supplier, Ameri-Source, Inc., which was not the actual manufacturer or distributor of GrafTech's UCAR graphite, “suppl[ied] * * * the certificate on [GrafTech] UCAR letterhead showing the [false] specs and mill test reports,” and then “prepared some certificate and faxed it to us for the approval.” In so doing, Bhayana committed one violation of Section 764.2(g) of the Regulations.
Charging Letter, at 2.
Respondent has been represented by counsel throughout this litigation. In response to requests for admission served by BIS, Respondent made a series of admissions, including that he knew throughout the investigation that the exported graphite rods and pipes were not UCAR graphite and had not been produced by UCAR/GrafTech; that the mill test certificate had been created at Ameri-Source, not by UCAR/GrafTech or any UCAR/GrafTech affiliate; and that when he was interviewed by BIS Special Agents in November 2004, he knew, but did not inform the agents, that the mill test certificate he handed to them contained false and misleading information.
BIS moved for summary decision as to Charge Two on July 30, 2010, and as part of that motion requested that the ALJ recommend that Respondent's export privileges be denied for a period of at least two years. As set forth in his October 12, 2010 Order Partially Granting BIS's Motion for Summary Decision, the ALJ determined that Charge Two had been proven by BIS and granted the motion for summary decision as to that violation of Section 764.2(g), but reserved ruling on a recommended sanction because Charge One was still pending.
On November 12, 2010, BIS withdrew Charge One of the Charging Letter in order to expedite resolution of this case. A briefing schedule was established on the issue of sanctions, and on November 23, 2010, Respondent filed his Memorandum Regarding Possible Sanctions, contending at bottom that no sanction should be imposed against him. In his sanctions memorandum, Respondent asserted,
On February 28, 2011, based on the entire record (including the findings and conclusions set forth in the Order Partially Granting BIS's Motion for Summary Decision), the ALJ issued the RDO to the parties, in which he recommended that a denial period of two years be assessed against Respondent Bhayana. The RDO contains a detailed review of the facts and applicable law relating to both merits and sanctions issues in this case.
Based on the record, the ALJ determined,
The ALJ determined that Respondent had demonstrated a serious disregard for his export compliance responsibilities when he made the false and misleading statements at issue.
The ALJ rejected Respondent's repeated attempts to attribute his false statements to an asserted lack of export experience, training, or knowledge of the Regulations. The ALJ ruled that even accepting Respondent's assertions as true, his unlawful conduct did not result from such factors. “Respondent's violation was not the result of a misinterpretation [of the Regulations], but instead was an intentional decision to provide misleading and false information rather than comply with the requirements of the law and regulations.” RDO, at 10;
The ALJ also rejected Respondent's efforts to attribute responsibility for his statements to his “low level” position at SparesGlobal or justify his misconduct based on his asserted fear that he would lose his job or work visa, concluding as follows:
Even if this [assertion] is accepted as accurate, it does not provide a defense to making false statements to Government officials during a formal investigation. * * * When a person provides information or statements during an investigation, the law allows persons to either provide truthful statements or make an assertion of privilege. This applies equally to all individuals, even “lower” level employees, during the course of investigations so [that] violations at all levels can be effectively investigated. In summary, Respondent chose to mislead the investigators and appease his bosses, instead of being truthful with BIS and complying with the regulations. Such a decision does not show a good-faith misinterpretation of the rules and is not a valid basis for mitigation of sanctions.
RDO, at 12-13.
The RDO, together with the entire record in this case, has been referred to me for final action under Section 766.22 of the Regulations. I find that the record supports the ALJ's findings of fact and conclusions of law that Respondent violated Section 764.2(g) by making false and misleading statements and representations to BIS during the course of an investigation. In addition to other evidence submitted by BIS, Respondent effectively admitted the violation during discovery in response to BIS's requests for admission. Moreover, Respondent has not asserted in his response to the RDO that the ALJ committed any error as to the merits or that any of the ALJ's findings or conclusions on the merits is erroneous.
I also find that the two-year denial order recommended by the ALJ upon his review of the entire record is appropriate, given the nature of the violations, the facts of this case, and the importance of deterring Respondent and others from seeking, through the provision of false and misleading information to BIS Special Agents, to thwart or impede BIS's enforcement of the Regulations.
Although focused on the settlement context, the Penalty Guidance can be instructive where considered and applied consistent with the factual context of a litigated case.
Accordingly, based on my review of the entire record, I affirm the findings of fact and conclusions of law in the RDO without modification, but with one clarification. The RDO states at one point that “[w]hile it may not fit clearly within Mitigation Factor 4 [of the EAR's Penalty Guidance], the fact that sensitive materials were not involved is given some weight in mitigation” and that “since Respondent's representation seems to concern a non-sensitive item, that is a factor that can be considered toward mitigation.”
In short, a respondent should not be allowed to reap any benefit from such false or misleading statements. With this clarification, I affirm the RDO.
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
This Order, which constitutes the final agency action in this matter, is effective upon publication in the
I hereby certify that, on this 29st day of March, 2011, I have served the foregoing DECISION AND ORDER signed by Eric L. Hirschhorn, Under Secretary of Commerce for Industry and Security, in the matter of Manoj Bhayana (Docket No: 10-BIS-0001) to be send via United Parcel Service postage pre-paid to:
This case arises from Manoj Bhayana's (Respondent) violation of the Export Administration Regulations (EAR or Regulations).
On or about December 2, 2003, Bhayana, while employed as a sales representative at SparesGlobal, Inc., caused, aided, abetted and permitted the submission of false and misleading representations and statements to the U.S. Government in connection with the preparation and submission of a Shipper's Export Declaration (SED), an export control document. The SED falsely represented and stated that the item being exported from the United States was “UCAR-GRAPHITE” and that the ultimate consignee was located in the United Arab Emirates (UAE). Bhayana and others created a forged mill certificate to indicate that the item was “UCAR-GRAPHITE.” Bhayana submitted the fraudulent mill certificate to the freight forwarder and told the freight forwarder that the ultimate consignee was in the UAE, when the actual ultimate consignee was in Pakistan. Based on the information provided by Bhayana, the freight forwarder filed the SED stating that the item was “UCAR GRAPHITE” and the ultimate consignee was in the UAE. In so doing, Bhayana committed one violation of Section 764.2(b) of the regulations.
Bhayana made false and misleading representations and statements in the course of a BIS investigation. On or about September 8, 2004, a BIS Special Agent asked about the mill certificate relating to the Shipper's Export Declaration (SED) filed on December 2, 2003, and referenced in Charge 1 above. In an emailed response to the Special Agent, Bhayana stated: “The test certificate was provided by [our supplier] to us. We do not have any knowledge about its origin.” On or about November 3, 2004, Bhayana was asked again about the mill certificate during an in-person interview with BIS Special Agents, and again provided copies of this forged mill certificate to the Special Agents. During this interview Bhayana also gave the BIS Special Agents a signed written statement referencing the mill test certificate specifications or “specs,” in which he indicated, “These specs which are being submitted here [to Special Agents] are the material specs which were shipped under this shipment.” In fact, Bhayana had worked with others to create the forged mill certificate falsifying the type of graphite rod being exported and knew that the certificate contained false information when he provided it to the Special Agents. When confronted later in the same interview by the Special Agents with evidence that the certificate had been forged, Bhayana signed a second written statement. In this second signed statement, Bhayana admitted that his earlier statements to the Special Agents were false. Specifically, Bhayana admitted that SparesGlobal's supplier, Ameri-Source, Inc., which was not the actual manufacturer or distributer of GrafTech's UCAR graphite, “suppl[ied] * * * the certificate on [GrafTech] UCAR letterhead showing the [false] specs and mill test reports,” and the “prepared some certificate and faxed it to us for the approval.” In so doing, Bhayana committed one violation of Section 764.2(g) of the Regulations.
On July 30, 2010, BIS filed a Motion for Summary Decision (BIS Motion) on Charge 2, asserting it was entitled to summary decision as a matter of law. Attached to its motion were fifteen (15) exhibits marked
On October 12, 2010, the undersigned issued an Order Partially Granting BIS's Motion for Summary Decision. In that Order, the undersigned found Charge 2 had been proven, but reserved ruling as to the recommended sanction for the violation because Charge 1 remained
On November 5, 2010, a prehearing conference was held to discuss scheduling concerns in light of the Order Partially Granting Summary Decision. During that prehearing conference call, BIS informed the undersigned and Respondent they intended to withdraw Charge 1. On November 12, 2010, BIS filed its Notice of Withdrawal of Charge 1.
With the withdrawal of Charge 1, the only issue remaining is the appropriate sanction for the violation found proved in Charge 2. On November 23, 2010, Respondent filed his final written brief and closing arguments. On December 6, 2010, BIS submitted their final written brief and closing arguments. The following recommended findings of fact and recommended decision is based on a careful review of the facts and record as a whole including the parties final briefs, the facts found in the Order Partially Granting the BIS Motion for Summary Decision and the applicable law and regulations.
Conclusions of Law
Section 764.3 of the EAR establishes the sanctions that BIS may seek for the violations charged in this proceeding. The sanctions permitted include: (1) A civil penalty, (2) a denial of export privileges under the Regulations, and (3) an exclusion from practice.
Both general factors and specific mitigating and aggravating factors are discussed in Supplement No. 1. Certain factors may be given greater weight than other factors. The Mitigating Factors include:
By examining the basic factors associated with the violations and by considering the appropriate mitigating and aggravating circumstances, an appropriate penalty is determined. A review of the factors and circumstances specific to this case are discussed below.
In this case, Respondent is found to have provided false or misleading statements to a BIS Special Agent during the course of an investigation. (Order Partially Granting BIS's Motion for Summary Decision (Order)).
As addressed within the Ultimate Findings of Fact and Conclusions of Law, Respondent willfully committed a violation of the EAR. While Respondent has presented argument asserting his excuses for providing false information to BIS, he nevertheless knowingly and willfully provided misleading information. An aggravating factor that is given great weight is a party's deliberateness in hiding a violation, Aggravating Factor 1. 15 CFR part 766, Supp No. 1, at § III(B). In this case, Respondent knowingly tried to hide the fact that a mill test certificate contained false and misleading information when questioned on it by BIS investigators. The court finds Respondent attempted to deliberately hide a violation. It was only after further investigation and confrontation with BIS Special Agents that Respondent eventually admitted to his attempt to hide the true facts.
An additional aggravating factor is when a party demonstrates a serious disregard for export compliance responsibilities, Aggravating Factor 2.
No other aggravating factors seem applicable in this case. No evidence was presented that would establish Respondent's violation had circumstances that fit within one of the other aggravating factors. While Respondent admits his current company has not created a systematic export compliance effort, no evidence was presented that shows he was responsible for or lacked a systematic export compliance effort at the time of the violation. However, as discussed above, two aggravating factors are found to exist that are given great weight when determining an appropriate sanction. First, Respondent made a deliberate attempt to hide or conceal the violation and second, Respondent's conduct demonstrated a serious disregard for export compliance responsibilities.
Within Respondent's Memorandum Regarding Possible Sanctions for his Violation (Memorandum), Respondent argues that several mitigating factors are relevant in his case. First, he suggests the violation was an isolated occurrence or the result of a good-faith misinterpretation. (
Respondent's second argument for mitigation is based upon the assertion that the product he lied about did not require a license to ship, thus falling within Mitigation Factor 4.
Respondent's third argument for mitigation is that he has not been found to have committed any past export violations, Mitigation Factor 5.
Respondent's fourth argument for mitigation is that he cooperated to an exceptional degree with BIS's efforts to investigate SparesGlobal's conduct, Mitigation Factor 6 and 7.
Respondent's fifth argument for mitigation is that at the time of the violation he had little or no export experience and was not familiar with export practices, Mitigation Factor 9.
Finally, Respondent also asserts throughout his pleadings that because he was a low level employee, seemingly more important people should be more culpable. Even if this is accepted as accurate, it does not provide a defense to making false statements to Government officials during a formal investigation. Allowing lower level employees to escape liability based on ignorance would provide an avenue to frustrate enforcement of legal export requirements. Additionally, violations by other persons or entities and actions against other persons or entities for violating the law are a collateral matter that is not demonstrated to be relevant to these proceedings. In response to Respondent's assertions, BIS contends the administrative proceedings against Respondent were apparently part of an enforcement effort against Respondent's employer, SparesGlobal.
In addition to the above mitigating factors, Respondent also argues that adverse financial hardships would result from a denial of export privileges. Respondent asserts that his only source of income is from his exporting business, which made $29,450 last year. (Memorandum at 14). Furthermore, he states if he is prevented from working in the export field, he would lose his Green Card status and would be forced to return to India with his family. (Memorandum at 15).
In accordance with the regulations, the financial impact of a denial of export privileges can be considered in determining if such a denial should be suspended. 15 CFR part 766, Supp No. 1, at § IV(B). However, a denial of export privileges will only be suspended if it is found that future export control violations are unlikely and if there are adequate measures to achieve a necessary deterrent, usually a substantial civil penalty.
Additionally, while Respondent has apparently accepted the court's ruling in regards to Charge Two, Respondent's arguments minimize his responsibility for his own lapse of judgment. In his Response, Respondent continues to attempt to excuse his actions by describing his lower level position with the company and excusing the behavior on the outside pressures he felt. The desire for continued employment is not a valid excuse for providing false and misleading information to investigators. Second, Respondent now runs his own company; however, he has not developed an effective export compliance program. (Memorandum at 11). Respondent excuses his failure to develop an effective export compliance program because “[h]e is not currently in a financial position * * *” to do so. (
While Respondent has pointed to mitigating factors that apply, including his otherwise clean exporting history and the non-sensitive nature of the parts he was exporting, I find that a two (2) year denial of export privileges as suggested by BIS is appropriate.
Respondent seems to have many personal factors affecting his ability to comply with the export regulations. And, while the court is sympathetic to Respondent's predicament, the court's determination in this matter is limited to issuing a decision in keeping with the law and regulations to ensure compliance with the export regulations. The court finds the argument of BIS persuasive. An appropriate sanction is necessary for deterring persons from providing false and misleading information that frustrates enforcing compliance with the regulations. In this case, a two (2) year denial of export privileges is deemed appropriate. Respondent may continue to seek administrative clemency from the Undersecretary in keeping with 15 CFR § 766.17(c) and 766.22.
Within thirty (30) days after receipt of this Recommended Decision and Order, the Under Secretary shall issue a written order, affirming, modifying, or vacating the Recommended Decision and Order.
15 CFR 766.22 Review by Under Secretary.
(a)
(b)
(c)
(d)
(e)
National Oceanic and Atmospheric Administration (NOAA), Commerce.
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 June 6, 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 Karen Williams, (301) 734-1196 or
Section 6(b) of Public Law 92-205 requires that persons who engage in weather modification activities (
Respondents have a choice of either electronic or paper forms. Methods of submittal include e-mail of electronic forms, mail and facsimile transmission of paper forms.
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.
National Oceanic and Atmospheric Administration (NOAA).
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 June 6, 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 Rich Malinowski, (727) 824-5305 or
This request is for an extension of a currently approved information collection. National Marine Fisheries Service (NMFS) Southeast Region manages the Unites States (U.S.) fisheries of the exclusive economic zone (EEZ) off the South Atlantic, Caribbean, and Gulf of Mexico under the Fishery Management Plans (FMP) for each Region. The Regional Fishery Management Councils prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. NMFS manages the red snapper fishery in the waters of the Gulf of Mexico under the Reef Fish FMP. The Individual Fishing Quota (IFQ) program was implemented to reduce the overcapacity in the fishery and end the derby fishing conditions that resulted from that overcapitalization.
The recordkeeping and reporting requirements at 50 CFR part 622 form the basis for this collection of information. NMFS Southeast Region requests information from fishery participants. This information, upon
Paper applications, electronic reports, and telephone calls are required from participants, and methods of submittal include internet, electronic forms, and facsimile transmission of paper forms.
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.
National Oceanic and Atmospheric Administration (NOAA).
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 June 6, 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 Ken Forster, (301) 713-2717 x153 or
This request is for an extension of a current information collection.
The U.S. Coast Guard Auxiliary members report observations of changes that require additions, corrections or revisions to Nautical Charts, on the NOAA Form 77-05. The U.S. Power Squadrons use a Web site to report the same information. The information provided is used by NOAA National Ocean Service to maintain and prepare new additions that are used nationwide by commercial and recreational navigators.
Methods of submittal include Internet and facsimile transmission of paper forms.
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that that the Alaska SeaLife Center (ASLC), 301 Railway Avenue, Seward, AK 99664 (Dr. Ian Dutton, Responsible Party), has been issued a major amendment to Permit No. 14334.
The permit amendment and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7221; fax (907)586-7249.
Amy Sloan or Tammy Adams, (301)713-2289.
On December 13, 2010, notice was published in the
Permit No. 14334-01 increases the number of Steller sea lion mortalities allowed under the permit (from two to four over the duration of the permit), authorizes the transfer of sea lions to and from an additional facility (The Dolfinarium in Harderwijk, Netherlands), and makes a correction to an error in the take table.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendments.
Notice is hereby given that the following applicants have been issued major amendments to permits for research on marine mammals in Alaska: (File No. 14330) the Aleut Community of St. Paul Island, Tribal Government, Ecosystem Conservation Office, St. Paul Island, AK; and (File No. 14335) the Alaska SeaLife Center, Seward, AK.
The permit amendments and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376; and
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249.
Tammy Adams or Amy Sloan, (301) 713-2289.
The requested permit amendments have been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of these permit amendments was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Michael Salmon, PhD, Florida Atlantic University, 777 Glades Road, P.O. Box 3091, Boca Raton, FL 33431, has applied in due form for a permit to take green sea turtles (
Written, telefaxed, or e-mail comments must be received on or before May 5, 2011.
The application and related documents are available for review by selecting Records Open for Public Comment from the
These documents are also available upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division:
• By e-mail to
• By facsimile to (301) 713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Colette Cairns or Amy Hapeman, (301) 713-2289.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Dr. Salmon proposes to characterize juvenile green turtle abundance and distribution in nearshore developmental habitats off the East coast of southern Florida. Annually, up to 30 green sea turtles would be captured by hand, transported to shore, measured, weighed, photographed, passive integrated transponder and flipper tagged, temporarily carapace marked, satellite tagged, held overnight, transported to site of capture, released, and recaptured at the conclusion of the study for gear removal. No mortalities would be authorized under the permit. The permit would be valid for 5 years from the date of issuance.
Defense Security Cooperation Agency, DoD
Notice
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 11-08 with attached transmittal, and policy justification.
Defense Security Cooperation Agency, DoD.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 10-78 with attached transmittal, policy justification, and Sensitivity of Technology.
Department of Defense.
United States Transportation Command (USTRANSCOM), DOD.
Notice.
Reference
Comments must be received on or before June 6, 2011.
Do not submit comments directly to the point of contact under
•
•
Mr. Jim Teague, United States Transportation Command, TCJ5/4-PI, 508 Scott Drive, Scott Air Force Base, IL 62225-5357; (618) 256-9605.
Request comments be submitted in the identified Excel-format sample posted with the business rules.
In furtherance of DOD's goal to develop and implement an efficient personal property program to facilitate quality movements for our military members and civilian employees, the Phase III Business Rules were developed by the Military Services and SDDC. The following revised Phase III iCM Business Rules are available for review and comment on the USTRANSCOM Web site at:
Attachment V.C.3—TSP Qualifications;
Attachment V.D.3—Rate Filing;
Attachment V.E.3—Customer Satisfaction Survey;
Attachment V.F.3—Best Value Score;
Attachment V.G.3—Electronic Bill Payment;
Attachment V.J.3—Shipment Management.
Any subsequent modification(s) to the business rules beyond the above stated changes will be published in the
A complete version of the DTR is available via the Internet on the USTRANSCOM homepage at
National Defense University, DoD.
Notice of Open Meeting; Date Change.
On January 10, 2011 (76 FR 1408), the Department of Defense published a notice of an open meeting of the National Defense University (NDU) Board of Visitors. The dates of the meeting have been changed and are updated below. The location remains unchanged.
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.
The point of contact for this notice of Open Meeting is Ms. Joycelyn Stevens @ (202) 685-0079, Fax (202) 685-3920 or
Office of the Secretary, DoD.
Notice of Advisory Committee Member Solicitation.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of
“(b) Functions.—The Board shall serve as an independent adviser to the Secretary of Defense to provide advice and recommendations to the Secretary on strategies, policies, and practices designed to improve and enhance the capabilities, efficiency, and effectiveness of the reserve components.
“(c) Membership.—The Board consists of 20 members, appointed or designated as follows:
“(6) Ten persons appointed or designated by the Secretary of Defense, each of whom shall be a United States citizen having significant knowledge of and experience in policy matters relevant to national security and reserve component matters and shall be one of the following:
“(A) An individual not employed in any Federal or State department or agency.
“(B) An individual employed by a Federal or State department or agency.
“(C) An officer of a regular component of the armed forces on active duty, or an officer of a reserve component of the armed forces in an active status, who—
“(i) is serving or has served in a senior position on the Joint Staff, the headquarters staff of a combatant command, or the headquarters staff of an armed force; and “(ii) has experience in joint professional military education, joint qualification, and joint operations matters.
The Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App.) and the FACA Implementing Regulations (FACA Regulations)(41 CFR 101-6 and 102-3) provide the basis for and guidance concerning the management and operation of Federal advisory committees. Typically, groups subject to FACA require open, pre-announced meetings; public access to discussions, deliberations, records and documents; opportunity for the public to provide, at a minimum, written comments; fairly balanced membership; and the evaluation of conflicts of interest for certain members. Section 5(b)(2) of the FACA requires “* * * the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.”
All nominees will be subject to Congressional Lobbyist Disclosure. Individuals appointed by the Secretary of Defense to serve on the Reserve Forces Policy Board will be appointed as experts and consultants under the authority of 5 U.S.C. 3109, serve as special government employees and be required to comply with all Department of Defense ethics requirements, to include the filing of confidential financial disclosure statements. In addition, those appointed will serve without compensation except for travel and per diem in conjunction with official Board business.
Lt Col Julie A. Small, Designated Federal Officer, (703) 697-4486 (Voice), (703) 693-5371 (Facsimile),
Department of the Navy, DoD.
Notice to Add a New System of Records.
The Department of the Navy proposes to add a new system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. § 552a), as amended.
The changes will be effective on May 5, 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:
*
*
Ms. Robin Patterson (202) 685-6545, or HEAD, FOIA/Privacy Act Policy Branch, Acting, the Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350-2000.
The Department of the Navy systems of records notice subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, has been published in the
The proposed systems reports, as required by 5 U.S.C. 552a (r) of the Privacy Act of 1974, as amended, were submitted onMarch 25, 2011, to the House Committee on Government Report, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individual,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Naval Audit Service Information Management System (NASIMS).
Department of the Navy Assistant for Administration, Office of Information Technology, 1000 Navy Pentagon, Washington, DC 20350-1000.
Department of the Navy military members, civilians employed by the Navy and contractors.
First, middle and last name, nickname, last four digits of Social Security Number (SSN), Electronic Data Interchange Personal Identifier (EDIPI) (also known as the Department of Defense personal identifier), date of birth, race, gender, photograph, entered on duty date, position title, directorate, division, team, pay plan, pay grade, series, security clearance level, educational information, location, room, home address, mailing address, work phone number, work cell phone number, work e-mail address, personal e-mail address, home phone number, personal cell phone number, and emergency contact name, home phone number, cell phone number, and work phone number.
10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 5013, Department of the Navy; 10 U.S.C. 5014, Office of the Secretary of the Navy; 10 U.S.C. 5041, Headquarters, Marine Corps; 5 U.S.C. 301, Departmental Regulations; DoD Directive 8320.1, DoD Data Administration; DoD Manual 7600.7-M, DoD Audit Manual; SECNAVINST 7510.7F, Department of the Navy Internal Audit and E.O. 9397 (SSN), as amended.
NASIMS is used by the Naval Audit Service to effectively and efficiently manage and track the personnel and administrative functions and business processes of the agency. The information is used to maximize staff resources and to provide project cost summary data; to track staff hours allocated towards project preparation and active projects which will allow for more effective scheduling of unassigned personnel and to categorize indirect time expended for end-of-year reporting; to plan workloads, to assist in providing time and attendance to the centralized payroll system; and to request, schedule and track auditor training requirements.
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’ that appear at the beginning of the Navy's compilation of system of record notices also apply to this system.
Records are stored on electronic storage media.
Records about individuals are retrieved using a combination of name, geographic and demographic characteristics (such as name, last four digits of Social Security Number (SSN), series, grade, dates of service and duty station).
Access to this system of records and personal information is restricted by the use of Common Access Card (CAC). Access to personal information is restricted to those who require the records in the performance of their official duties. This system of records is profile or role based, which limits the user to specific data and/or application functions. Users in a specific profile cannot view data outside of that profile's restriction. All individuals to be granted access to this system of records are to have received Information Assurance and Privacy Act training. Computerized records are maintained in a controlled area accessible only to authorized personnel. Entry to these areas is restricted to those personnel with a valid requirement and authorization to enter. Physical entry is restricted by the use of locks, guards, and administrative procedures.
Internal Audit Policy records are maintained for 3 years then destroyed, or destroyed 1 year after guidance is superseded. Management Information Systems Reports are destroyed when no longer needed for administrative, legal, audit, or other operational purposes, whichever is later. Audit Schedules are maintained for 3 years then destroyed, or destroyed when no longer needed. Annual Audit Plan records are maintained for 11 years then destroyed. Time and attendance records are maintained for 6 years then destroyed. Records are destroyed by degaussing or erasing from the system.
Director, Information Management and Analysis, Naval Audit Service, 1006 Beatty Place SE., Washington Navy Yard, DC 20374-5005.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Naval Audit Service, Attn: FOIA, 1006 Beatty Place SE., Washington Navy Yard, DC 20374-5005.
The request should be signed and include full name, dates of service, last four digits of Social Security Number (SSN), series, grade, duty station and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
Individuals seeking access to records about themselves contained in this system of records should address written inquiries to Naval Audit Service,
The request should be signed and include full name, dates of service, last four digits of Social Security Number (SSN), series, grade, duty station and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
The Navy's rules for accessing records and for contesting contents and appealing initial agency determinations are published in SECNAVINST 5211.5 series and 32 CFR part 701 or may be obtained from the system manager.
Information is obtained primarily from the individual and/or Naval Audit Service Human Resources staff and from official Department of Navy and Department of Defense official programs of record: Defense Civilian Personnel
None.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before June 6, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before May 5, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs,
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Institute of Education Sciences, Department of Education.
Notice of a new system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), the Department of Education (Department) publishes this notice of a new system of records entitled “Evaluation of Teacher Residency Programs” (18-13-24). The National Center for Education Evaluation and Regional Assistance at the Department's Institute of Education Sciences (IES) commissioned this evaluation. It will be conducted under a contract that IES awarded in February 2010.
The central research questions that the study will address are: What are the characteristics of Teacher Residency Programs (TRPs)? What are the characteristics of participants in TRPs? What is the average performance of novice TRP teachers as measured by value-added estimates benchmarked against novice and all teachers in the district? What are the retention rates of novice TRP teachers and their novice colleagues who did not go through TRPs?
The system will contain information on approximately 255 residents and 270 mentors from 15 teacher residency programs and approximately 800 teachers and 20,000 students from 8 districts.
The Department seeks comment on the new system of records described in this notice, in accordance with the requirements of the Privacy Act. We must receive your comments on the proposed routine uses for the system of records referenced in this notice on or before May 5, 2011.
The Department filed a report describing the new system of records covered by this notice with the Chair of the Senate Committee on Homeland Security and Governmental Affairs, the Chair of the House Committee on Oversight and Government Reform, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on March 31, 2011. This system of records will become effective at the later date of—(1) the expiration of the 40-day period for OMB review on May 10, 2011, unless OMB waves 10 days of the 40-day review period for compelling reasons shown by the Department, or (2) May 5, 2011, unless the system of records needs to be changed as a result of public comment or OMB review.
Address all comments about the proposed routine uses to Dr. Audrey Pendleton, Acting Associate Commissioner, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue, NW., room 502D, Washington, DC 20208-0001. Telephone: (202) 208-7078. If you prefer to send comments through the Internet, use the following address:
You must include the term “Evaluation of Teacher Residency
During and after the comment period, you may inspect all comments about this notice at the U.S. Department of Education in room 502D, 555 New Jersey Avenue, NW., Washington, DC, between the hours of 8:00 a.m. and 4:30 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of aid, please contact the person listed under
Dr. Audrey Pendleton.
Individuals with disabilities may obtain this document in an alternative format (
The Privacy Act (5 U.S.C. 552a) requires the Department to publish in the
The Privacy Act applies to information about individuals that contains individually identifying information and that is retrieved by a unique identifier associated with each individual, such as a name or social security number. The information about each individual is called a “record,” and the system, whether manual or computer-based, is called a “system of records.”
The Privacy Act requires each agency to publish a notice of a system of records in the
You can view this document, as well as all other documents of this Department published in the
The official version of this document is the document published in the
For the reasons discussed in the preamble, the Director of the Institute of Education Sciences, U.S. Department of Education, publishes a notice of a new system of records to read as follows:
Evaluation of Teacher Residency Programs.
None.
(1) Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences (IES), U.S. Department of Education, 555 New Jersey Avenue, NW., room 502D, Washington, DC 20208-0001.
(2) Mathematica Policy Research, Inc., 600 Alexander Park, Princeton, NJ 08540 (contractor).
(3) Decision Information Resources, Inc., 2600 Southwest Freeway, Suite 900, Houston, TX 77098 (subcontractor).
This system contains records on approximately 255 residents and 270 mentors from approximately 15 teacher residency programs and 800 teachers and 20,000 students from 8 districts.
The system of records will include personally identifying information about the students in the participating teacher classrooms, including demographic information such as race, ethnicity, gender, age, and educational background; information on attendance and disciplinary incidences; and scores on reading and mathematics achievement tests. The system of records will also include personally identifying information about the mentors, residents and teachers participating in the evaluation, including demographic information, such as race, ethnicity, gender, and educational background, and teaching experience. The system of records will also include employment information on the teachers participating in the evaluation.
The evaluation is authorized under sections 171(b) and 173 of the Education Sciences Reform Act of 2002 (ESRA) (20 U.S.C. 9561(b) and 9563), and section 202(h)(1) of the Higher Education Act, as amended by the Higher Education Opportunity Act of 2008 (HEA) (20 U.S.C. 1022a(h)). The grant programs that are the subject of this evaluation are authorized under Part A of Title II of the HEA (sec. 201-204) (20 U.S.C. 1022-1022c).
The information contained in the records maintained in this system is used for the following purpose:
To describe Teacher Residency Programs (TRPs) and summarize the teacher retention and student achievement outcomes of TRP participants. The study will address the following research questions:
(1) What are the characteristics of TRPs?
(2) What are the characteristics of participants in TRPs?
(3) What is the average performance of novice TRP teachers as measured by value-added estimates benchmarked against novice and all teachers in the district?
(4) What are the retention rates of novice TRP teachers and their novice colleagues who did not go through TRPs?
The Department of Education (Department) may disclose information contained in a record in this system of records under the routine uses listed in this system of records without the
Not applicable to this system notice.
The Department maintains records on CD-ROM, and the contractor (Mathematica Policy Research, Inc.) and sub-contractor (Decision Information Resources, Inc.) maintain data for this system on computers and in hard copy.
Records in this system are indexed and retrieved by a number assigned to each individual that is cross-referenced by the individual's name on a separate list.
All physical access to the Department's site and to the sites of the Department's contractor and subcontractor, where this system of records is maintained, is controlled and monitored by security personnel. The computer system employed by the Department offers a high degree of resistance to tampering and circumvention. This security system limits data access to Department and contract staff on a need-to-know basis, and controls individual users' ability to access and alter records within the system. The contractor and subcontractor will establish a similar set of procedures at their sites to ensure confidentiality of data. The contractor and subcontractor are required to ensure that information identifying individuals is in files physically separated from other research data. The contractor and subcontractor will maintain security of the complete set of all master data files and documentation. Access to individually identifying data will be strictly controlled. All data will be kept in locked file cabinets during nonworking hours, and work on hardcopy data will take place in a single room, except for data entry. Physical security of electronic data will also be maintained. Security features that protect project data include: Password-protected accounts that authorize users to use the contractor's and subcontractor's systems but to access only specific network directories and network software; user rights and directory and file attributes that limit those who can use particular directories and files and determine how they can use them; and additional security features that the network administrators will establish for projects as needed. The contractor's and subcontractor's employees who “maintain” (collect, maintain, use, or disseminate) data in this system shall comply with the requirements of the confidentiality standards in section 183 of the ESRA (20 U.S.C. 9573).
Records are maintained and disposed of in accordance with the Department's Records Disposition Schedules (ED/RDS, Part 3, Item 2b and Part 3, Item 5a).
Acting Associate Commissioner, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue, NW., room 502D, Washington, DC 20208.
If you wish to determine whether a record exists regarding you in the system of records, contact the systems manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to gain access to your record in the system of records, contact the system manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to contest the content of a record regarding you in the system of records, contact the system manager. Your request must meet the requirements of the regulations at 34 CFR 5b.7, including proof of identity.
This system contains records on residents, mentors, teachers, and students participating in an evaluation of teacher residency programs. Data will be obtained through student records maintained by the school districts, assessments administered to students, and surveys of residents, mentors, and teachers.
None.
Federal Energy Regulatory Commission.
Notice of proposed information collection and request for comments.
In compliance with the requirements of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A) (2006) (Pub. L. 104-13), the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the proposed information collection described below.
Comments in consideration of the collection of information are due June 3, 2011.
Comments may be filed either electronically (eFiled) or in paper format, and should refer to Docket No. IC11-603-000. Documents must be prepared in an acceptable filing format and in compliance with Commission submission guidelines at
Users interested in receiving automatic notification of activity in this docket may do so through eSubscription at
Ellen Brown may be reached by e-mail at
The information collected under the requirements of FERC-603 “Critical Energy Infrastructure Information” (OMB No. 1902-0197) is used by the Commission to implement procedures for gaining access to critical energy infrastructure information (CEII) that would not otherwise be available under the Freedom of Information Act (5 USC 552). On February, 21, 2003, the Commission issued Order No. 630 (66 FR 52917) to address the appropriate treatment of CEII in the aftermath of the September 11, 2001 terrorist attacks and to restrict unrestrained general access due to the ongoing terrorism threat. These steps enable the Commission to keep sensitive infrastructure information out of the public domain, decreasing the likelihood that such information could be used to plan or execute terrorist attacks. The process adopted in Order No. 630 is a more efficient alternative for handling requests for previously public documents than FOIA The Commission has defined CEII to include information about “existing or proposed critical infrastructure that (i) relates to the production, generation, transportation, transmission, or distribution of energy; (ii) could be useful to a person planning an attack on critical infrastructure; (iii) is exempt from mandatory disclosure under the Freedom of Information Act, and (iv) does not simply give the location of the critical infrastructure. Critical infrastructure means existing and proposed systems and assets, whether physical or virtual, the incapacity or destruction of which would negatively affect security, economic security, public health or safety, or any combination of those matters. A person seeking access to CEII may file a request for that information by providing information about their identity and reason as to the need for the information. Through this process, the Commission is able to review the requester's need for the information against the sensitivity of the information. The compliance with these requirements is mandatory.
The estimated total cost to respondents is $4,080. The cost per respondent = $20.40. (60 hours @ $68 hourly rate (rounded off)).
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests: April 29, 2011.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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On March 9, 2011, Teton Power Funding, LLC (transferor), Topsham Hydro Partners Limited Partnership, Topsham Hydroelectric Generating Facility Trust No. 1 (co-licensees) and Brown Bear Power, LLC (transferee) filed an application for the partial transfer of license for the Pejepscot Project No. 4784, located on the Androscoggin River in Sagadahoc, Cumberland, and Androscoggin counties, Maine.
Applicants seek Commission approval to partial transfer of the license for the Pejescot Project from the transferor to transferee.
Deadline for filing comments and motions to intervene: 20 days from the issuance date of this notice. Comments and motions to intervene may be filed electronically via the Internet.
Take notice that on March 9, 2011, Tennessee Gas Pipeline Company (Tennessee), filed an application in Docket No. CP11-133-000 pursuant to section 7(b) and (c) of the Natural Gas Act and Part 157 of the Commission's Regulations, for a certificate of public convenience and necessity to upgrade and modify compression facilities to be located in New York (Station 230C Project).
Tennessee proposes to replace two compressor units with two larger compressor units, as well and make other enhancements at its compressor Station 230C near Lockport, New York, in order to enhance the operational flexibility of the Niagara Spur Loop Line (NSLL), a Canadian border crossing, and thereby enhance the flexibility and reliability of transportation services provided to shippers on the interstate pipeline systems owned by National Fuel Gas Supply Corporation (National Fuel) and Tennessee. As operator of jointly-owned facilities, Tennessee proposes the Station 230C
Any questions concerning this application may be directed to James D. Johnston, Associate General Counsel, Tennessee Gas Pipeline Company, 1001 Louisiana Street, Houston, Texas 77002,
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 9, 2011, Gulf South Pipeline Company, LP (Gulf South), 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, filed in Docket No. CP11-132-000 an application pursuant to section 7(b) of the Natural Gas Act (NGA) for permission and approval to abandon by sale to Boardwalk Field Services, LLC (Field Services) the Pettus Lateral Facilities in Bee and Refugio Counties, Texas, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
Gulf South proposes to abandon by sale the 40-mile long, 18-inch diameter Pettus Lateral and associated laterals and gathering systems with related meters, receipt taps, and other associated facilities located in Bee and Refugio Counties, to Field Services. Gulf South states that the Pettus Lateral Facilities have a capacity of approximately 27,000 Dekatherms per
Any questions regarding this application should be directed to M. L. Gutierrez, Director, Regulatory Affairs, Gulf South Pipeline Company, LP, 9 Greenway Plaza, Suite 2800, Houston, Texas 77046, or by telephone (713) 215-4015, facsimile (713) 479-1745, or e-mail to
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper.
Take notice that on March 7, 2011, National Fuel Gas Supply Corporation (National Fuel), filed an application in Docket No. CP11-128-000 pursuant to section 7(c) of the Natural Gas Act and Part 157 of the Commission's Regulations, for a certificate of public convenience and necessity to construct and operate its Northern Access Project. National Fuel requests authorization to: (1) Construct a new compressor station in East Aurora, Erie County, New York, (2) make piping changes at the Concord Compressor Station in Erie County, New York to permit bi-directional flow, and (3) install two additional compressor units at its existing Ellisburg Compressor Station in Potter County, Pennsylvania. National Fuel also proposes to upgrade facilities at Rose Lake near Ellisburg, to serve as a new interconnection facility with Tennessee Gas Pipeline Company (Tennessee). In a related application submitted by Tennessee in Docket No. CP11-133-000 on March 9, 2011, National Fuel and Tennessee propose to modify and upgrade certain facilities on the jointly-owned Niagara Spur Loop Line (NSLL) facilities so that the NSLL can be operated bi-directionally (Station 230C Project). Both proposals will allow for bi-directional firm transportation service of 320,000 Dekatherms per day of natural gas from the Rose Lake interconnect to the facilities of TransCanada PipeLines, Ltd. at Niagara, all as more fully set forth in the applications which are on file with the Commission and open for public inspection. The estimated total cost of the Northern Access Project and the Station 230C Project is $59,991,948.
Any questions regarding this application should be directed to Antoinetta Mucilli, Senior Attorney for National Fuel, 6363 Main Street, Williamsville, New York 14221, or call at (716) 857-7067.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made with the Commission and must mail a copy to
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 28, 2011, the applicants listed above submitted a revised baseline filing of their Statement of Operating Conditions for services provided under section 311 of the Natural Gas Policy Act of 1978 (“NGPA”).
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On July 24, 2009, Ocean Renewable Power Company, LLC (ORPC) filed a draft hydrokinetic pilot license application (DLA) for the proposed Eastport Tidal Energy Project, a proposal that unified two preliminary permits held by ORPC, the Cobscook Bay Tidal Energy Project preliminary permit (P-12711-004) and the Western Passage Tidal Energy Project preliminary permit (P-12680-004). The DLA was assigned a single docket number, P-12680-003, to represent the Eastport Tidal Energy Project pre-filing proceeding. ORPC has since dropped the Western Passage preliminary permit area from its pilot project proposal and is pursuing a pilot project license solely for the Cobscook Bay preliminary permit area. Due to this change in project proposal, ORPC has changed the name of its proposed pilot project from the Eastport Tidal Energy Project to the Cobscook Bay Tidal Energy Project.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of two related projects proposed by National Fuel Gas Supply Corporation (National Fuel) and Tennessee Gas Pipeline Company (TGP). National Fuel's Northern Access Project would involve construction and operation of facilities in Erie County, New York and Potter County, Pennsylvania. TGP's Station 230C Project would involve construction and operation of facilities in Niagara County, New York. This EA will be used by the Commission in its decision-making process to determine whether these projects are in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the projects. Your input will help the Commission staff determine what issues need to be evaluated in the EA. Please note that the scoping period will close on April 28, 2011.
Commission staff will conduct two onsite environmental reviews of National Fuel's proposed East Aurora Compressor Station site and its Ellisburg Compressor Station expansion. All interested parties planning to attend must provide their own transportation. Those attending should meet at the following locations:
This notice is being sent to the Commission's environmental mailing list for these projects. State and local government representatives are asked to notify their constituents of these proposed projects and encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice National Fuel and TGP provided to landowners. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC website (
National Fuel's proposed Northern Access Project would provide about 320,000 dekatherms per day of firm Marcellus Shale natural gas transportation service to northeastern and Canadian markets. The Northern Access Project would consist of the following:
• A new East Aurora Compressor Station, totaling 4,470-horsepower (hp), and auxiliary facilities in Erie County, New York;
• Piping modifications at the existing Concord Compressor Station in Erie County, New York to permit bidirectional flow;
• Two additional compressor units, totaling 9,470-hp, at the existing Ellisburg Compressor Station in Potter County, Pennsylvania; and
• Upgrades to the existing Rose Lake Interconnection metering facilities at the Ellisburg Compressor Station.
TGP's proposed project would include upgrades and modifications at its existing Compressor Station 230C in Niagara County, New York, located on the Niagara Spur Loop Line (NSLL). TGP states that the purpose of the Station 230C Project is to make the NSLL facilities, jointly owned with National Fuel, a bi-directional pipeline. TGP's and National Fuel's projects would make the proposed receipt and delivery service available to the northeastern and Canadian markets. TGP's project would consist of the following facilities at the Compressor Station 230C:
• Abandonment by replacement of the A2 and A3 compressor engines;
• Restaging of centrifugal compressors for units A2, A3, and A4 to match bi-directional flow conditions;
• Piping modifications to allow reverse flow;
• New discharge flow check meters and check valves along the existing 20- and 30-inch pipelines;
• New station discharge cooling equipment; and
• Modification to station automation systems and installation of yard valves to allow bi-directional flow.
The general locations of the projects' facilities are shown in appendix 1.
Construction of the Northern Access Project facilities would disturb a total of about 12.6 acres of land for the aboveground facilities. Following construction, a total of about 11.4 acres would be maintained for permanent operation of the project's facilities.
Construction of the Station 230C Project facilities would disturb about 7 acres of land for the compressor station upgrades and modifications; this includes 4.6 acres of temporary workspace outside the existing station fence line. About 2.4 acres of land within the station fence line would be required for operation of the project facilities.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed projects under these general headings:
• Geology and Soils;
• Land Use;
• Water Resources, Fisheries, and Wetlands;
• Endangered and Threatened Species;
• Vegetation and Wildlife;
• Cultural Resources;
• Air Quality and Noise; and
• Public safety.
We will also evaluate reasonable alternatives to the proposed projects or portions of the projects, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be presented in the EA. The EA will be placed in the public record and, depending on the comments received during the scoping process, may be published and distributed to the public. A comment period will be allotted if the EA is published for review. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section beginning on page 5.
With this notice, we are asking agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Offices (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the projects' potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the projects. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that they will be received in Washington, DC on or before April 28, 2011.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket numbers (CP11-128-000 and CP11-133-000) with your submission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's Web site at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's Web site at
(3) You may file a paper copy of your comments at the following address:
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the projects. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed projects.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the projects is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that on March 16, 2011, American Midstream (Louisiana Intrastate), LLC (AMLI) filed to revise its Fuel Retention percentage and to revise section 3.2 of its Statement of Operating Conditions to remove obsolete and unnecessary language as more fully described in the filing.
Any person desiring to participate in this rate filing 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). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 24, 2011, The City of Springfield, Illinois, City Water, Light and Power (CWLP), filed its proposed rate schedule, which specified CWLP's cost-based revenue requirements for Reactive Supply and Voltage Control from Generation Sources Service supplied by five CWLP generating units, pursuant to the Open Access Transmission and Energy Markets Tariff of the Midwest Independent Transmission System Operator, Inc, along with supporting testimony and data.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 28, 2011, Jefferson Island Storage & Hub, L.L.C. (Jefferson Island) submitted a revised Statement of Operating Conditions (SOC) for services provided under section 311 of the Natural Gas Policy Act of 1978 (“NGPA”). Jefferson Island proposes to revise its SOC to provide its customers the option to use pooling points as additional points of receipt and/or delivery under their service agreements, as more fully described in the application.
Any person desiring to participate in this rate filing 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). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
This notice announces the availability of a Memorandum of Understanding (MOU) between the Federal Energy Regulatory Commission (FERC) and the U.S. Fish and Wildlife Service (FWS) to Promote Conservation of Migratory Birds signed March 30, 2011. The MOU provides for strengthening migratory bird conservation by identifying and implementing strategies that promote conservation and reduce or eliminate adverse impacts on migratory birds through enhanced collaboration between FERC and FWS.
The MOU identifies specific activities where cooperation between FERC and FWS will contribute to the conservation of migratory birds and their habitat, and outlines a collaborative approach to promoting the conservation of migratory bird populations and furthering implementation of the migratory bird conventions, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and other pertinent statutes. The implementation of the MOU will be coordinated through ongoing communication between the FERC Office of Energy Projects and the FWS Division of Migratory Bird Management.
The MOU will be available on the FERC (
For further information, contact Alan Mitchnick, 202-502-6074,
Take notice that on March 28, 2011, J-W Pipeline Company (J-W) filed a request for an extension consistent with the Commission's revised policy of periodic review from a triennial to a five year period. The Commission in Order No. 735 modified its policy concerning periodic reviews of rates charges by section 311 and Hinshaw pipelines to extend the cycle for such reviews from three to five years.
Any person desiring to participate in this rate proceeding must file a motion to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
On April 12 and 13, 2011, the Office of Energy Projects (OEP) staff will be in Wyoming County, New York, and Tioga and Bradford Counties, Pennsylvania to gather data for the environmental analysis of two related projects
All interested parties planning to attend must provide their own transportation. Those attending should meet at the following locations:
Please use the Federal Energy Regulatory Commission's free eSubscription service to keep track of all formal issuances and submittals in these dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. To register for this service, go to
Information about specific onsite environmental reviews is posted on the Commission's calendar at
On July 12, 2010, Lock Hydro Friends Fund LII, filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of hydropower at the U.S. Army Corps of Engineers (Corps) Green River Lock and Dam located on the Green River in Henderson County, Kentucky. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) Two prefabricated concrete walls attached to the downstream side of the Corps dam which would support one frame module; (2) the frame module would be 109 feet long, 40 feet high, and weigh 1.16 million pounds and contain 10 generating units with a total combined capacity of 19.0 megawatts (MW); (3) a new switchyard containing a transformer; (4) a proposed 5.0-mile-long, 69-kilovolt (kV) transmission line to an existing distribution line. The proposed project would have an average annual generation of 83.277 gigawatt-hours (GWh), which would be sold to a local utility.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
On July 16, 2010, Lock Hydro Friends Fund LI, filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of hydropower at the U.S. Army Corps of Engineers (Corps) Kentucky River Lock and Dam located on the Kentucky River in Carroll County, Kentucky. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) Two prefabricated concrete walls attached to the downstream side of the Corps dam which would support one frame
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
On March 1, 2011, Kahawai Power 5, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Wailua Reservoir Water Power (Wailua Reservoir project) to be located on the Wailua reservoir in the vicinity of Wailua Homesteads, in Kauai County, Hawaii. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project will utilize flows from the existing 1,400-foot-long earth-fill dam on the Wailua Reservoir, which is owned and operated by State of Hawaii's Department of Land and Natural Resources. New project features would consist of the following: (1) An intake structure at the existing 36-inch low-level outlet structure with a trash rack and control gate; (2) 14,600-foot-long, 42-inch-diameter steel penstock from the intake structure to the powerhouse; (3) a 50-foot by 40-foot reinforced concrete powerhouse containing one two-jet Turgo turbine with a capacity of 2 megawatts; (4) a 45-foot-long, 15-foot-wide tailrace channel; (5) an approximately 12,500-foot-long, 69-kilovolt transmission line which will tie into the existing grid near the Lyngate switchyard; and (6) appurtenant facilities. The estimated annual generation of the Wailua Reservoir project would be 11.5 gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet.
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that on March 22, 2011, El Paso Natural Gas Company (El Paso), Post Office Box 1087, Colorado Springs, CO 80944, filed a prior notice request pursuant to sections 157.205(b) and 157.208(f) of the Federal Energy Regulatory Commission's regulations and pursuant to El Paso's Part 157 blanket certificate issued in Docket No. CP82-435-000. El Paso proposes to increase the certificated Maximum Allowable Operating Pressure (MAOP) of a 1.2 mile, 2-inch outer-diameter segment of pipe located in El Paso County, Texas. Specifically, El Paso requests authorization to increase the certificated MAOP of a segment of Line No. 2053 running from the El Paso-
Any questions regarding this application should be directed to Susan C. Stires, Post Box Office 1087, Colorado Springs, CO 80944, telephone no. (719) 667-7514, facsimile no. (719) 667-7534, and e-mail:
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper.
Environmental Protection Agency.
Meeting notice.
Under the Federal Advisory Committee Act, the U.S. Environmental Protection Agency's Local Government Advisory Committee's Small Community Advisory Subcommittee is meeting monthly, via teleconference calls, to discuss EPA regulation, policy, and the significant environmental issues that affect small communities and are relevant to its scope and charge as set forth by the Administrator of the EPA. These monthly teleconference meetings are an opportunity for Small Community Advisory Subcommittee members to work together and discuss relevant issues, as well as allow an opportunity for the public to listen and comment.
The meeting dates are:
1. April 14, 2011, 2:30 p.m. to 3:30 p.m., teleconference meeting.
2. May 12, 2011, 2:30 p.m. to 3:30 p.m., teleconference meeting.
3. June 9, 2011, 2:30 p.m. to 3:30 p.m., teleconference meeting.
4. July 14, 2011, 2:30 p.m. to 3:30 p.m., teleconference meeting.
The Small Community Advisory Subcommittee meetings will be held by teleconference on the dates provided above. The Committee's meeting summary will be available after the meeting online at:
Paula Zampieri, the Designated Federal Officer for the Small Community Advisory Subcommittee at (202) 566-2496 or e-mail at
This is an open meeting and all interested persons are invited to participate. The Committee will allow time for public comment between 2:45 p.m. to 3:15 p.m. during the teleconference meeting dates listed above. Individuals or organizations wishing to address the Committee will be allowed a maximum of five minutes to present their point of view. Also, written comments should be submitted electronically to
Environmental Protection Agency (EPA).
Notice.
The EPA is hereby granting a project waiver of the Buy American requirements of ARRA Section 1605 under the authority of Section 1605(b)(2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality]
Alicia Reinmund-Martínez, Environmental Engineer, (212) 637-3827, State Revolving Fund Program Team, Division of Environmental Planning and Protection, U.S. EPA, 290 Broadway, New York, NY 10007.
In accordance with ARRA Sections 1605(c) and 1605(b)(2), the EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy American requirements, to the Authority for the purchase of a Leitwind LTW 77 wind turbine generator, manufactured by Leitner-Poma, that meets the Authority's design and performance specifications to be installed at its existing Oak Street Pumping Station site. EPA has evaluated the Authority's basis for the procurement of a foreign made wind turbine generator. Based upon information submitted by the Authority and its consulting engineer, EPA has concluded that there are currently no domestic manufactured wind turbines available in sufficient and reasonable quantity and of a satisfactory quality to meet the Authority's project design and performance specifications.
Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or a public works project unless all of the iron, steel, and manufactured goods used in the project are produced in the United States, or unless a waiver is provided to the recipient by the head of the appropriate agency, here the EPA. A waiver may be provided under Section 1605(b) of ARRA if EPA determines that (1) applying these requirements would be inconsistent with public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
EPA has determined that the Authority's waiver request is timely even though the request was made after the construction contract was signed. Consistent with the direction of the Office of Management and Budget (OMB) regulations at 2 CFR 176.120, EPA has evaluated the Authority's request to determine if the request, though made after the contract date, can be treated as if it were timely made. EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contract as “late” if submitted after the contract date. However, in this case, EPA has determined that the Authority's request may be treated as timely because the need for a waiver was not foreseeable at the time the contract was signed. The Authority submitted this waiver request after the contract date because the domestic manufacturer of a 1.5 megawatt (MW) wind turbine generator that met project specifications ultimately withdrew from the project. The need for a waiver was not determined until on or about November 6, 2010, when the domestic manufacturer notified the Authority that it was unwilling to provide a 1.5 MW wind turbine generator on the basis that the project site did not meet the manufacturer's property setback requirements as well as other siting requirements. The Authority's subsequent research indicated that no other domestic manufactured 1.5 MW wind turbine generators met project specifications. Accordingly, EPA will evaluate the request as a timely request.
The Authority's wind power project includes the installation of a 1.5 MW wind turbine generator at its existing Oak Street Pumping Station, which is the main combined and sanitary pumping station serving all of the City of Bayonne's (City) approximate 62,000 residents. The wind turbine generated electricity will drive the Oak Street Pumping Station, which is operational 24 hours per day and has an average daily dry weather flow of 8 million gallons per day (MGD), and a total capacity of 18 MGD. The wind turbine generator will also be interconnected with the nearby East 5th Street storm water relief pumping station, which has four 150 horsepower (HP) lift pumps and one 60 HP lift pump that help prevent localized flooding in a residential area of the City. The project was designed for a 1.5 MW domestic manufactured wind turbine generator and will be located on a 22.95 acre property owned by the Authority that is situated in a predominantly industrial area.
The Authority is requesting a waiver for the purchase of a Leitwind LTW77 wind turbine, manufactured by Leitner-Poma, because according to the Authority, there is only one domestic manufacturer that produces a wind turbine generator that meets the project design and performance specifications. However, that domestic manufacturer withdrew from the project on November 6, 2010, on the basis of its own internal siting and setback recommendations that could not be met at the project site. Although the site did not meet the domestic manufacturer's setback requirements, the Authority had worked with the domestic manufacturer's engineers to develop other mitigation measures to prevent damage or injury from shedding ice. These measures include, but are not limited to, sensors to detect ice buildup and stop the wind turbine generator when ice is detected with manual restart and the repositioning of the turbine blades to minimize ice shedding issues. Despite the Authority's efforts, the domestic manufacturer was not willing to supply their product and ultimately withdrew from the project.
The Authority examined twenty other available domestic and foreign wind turbine generators and only the Leitwind LTW 77 model meets all project specifications. Of the other five domestic manufacturers contacted, several produce wind turbine generators that are larger than the 1.5 MW allowed by the project specifications. In addition, many of the domestic
The Authority states that only the Leitwind LTW 77 foreign manufactured model meets the size and noise requirements for this project. Although the Leitwind LTW 77 does not use the same site consideration limitations that are used by the domestic manufacturer that withdrew from the project and notwithstanding that there are currently no local, State, or Federal requirements regulating the setback distances associated with the operation of wind turbines, the Authority has indicated that it has taken all necessary precautions to eliminate ice shedding. Such mitigation measures include, but are not limited to, the incorporation of controls with three levels of redundancy to shut down the turbine during potential glaze icing events and the restarting of the turbine only after a detailed visual inspection is completed, vibration sensors on the blades that recognize if the blades are out of balance due to ice formation, and the positioning of the shut down turbine to facilitate ice shedding directly into a fenced enclosure with posted warning signs directly below the turbine.
Also, the Federal Aviation Administration (FAA) notified the Authority that its study revealed that a wind turbine generator on the site would not be a hazard to air navigation, provided that the turbine structure is marked and/or lighted, in accordance with FAA Advisory Circular 70/7640-1 K Change 2. The Authority confirmed that the LTW 77 specifications fall within the scope of the FAA's determination and that the Authority will mark and/or light the turbine in accordance with FAA requirements.
Based on the technical evaluation of the Authority's waiver request and supporting documentation conducted by EPA's national contractor, the Authority's claim that no domestic manufacturer can produce and site a 1.5 MW wind turbine generator that meets the project specifications is supported by the available evidence. In addition, the evaluation of the supporting documentation indicates that at least one foreign manufacturer, Leitner-Poma, will provide a 1.5 MW wind turbine generator at the site that can meet project design and performance specifications.
The purpose of the ARRA is to stimulate economic recovery in part by funding current infrastructure construction, not to delay projects that are already “shovel ready” by requiring entities, such as the Authority, to revise their design standards and specifications and potentially choose a more costly, less efficient project. The imposition of ARRA Buy American requirements on such projects otherwise eligible for State Revolving Fund assistance would result in unreasonable delay and potentially the cancellation of this project as sited. The delay or cancellation of this construction would directly conflict with the fundamental economic purpose of ARRA, which is to create or retain jobs.
The April 28, 2009, EPA Headquarters Memorandum, “Implementation of Buy American provisions of Public Law 111-5, the `American Recovery and Reinvestment Act of 2009' ” (Memorandum), defines:
The Region 2 State Revolving Fund Program Team has reviewed this waiver request and has determined that the supporting documentation provided by the Authority establishes both a proper basis to specify the particular good required and that the manufactured good is not available from a producer in the United States to meet the design specifications for the proposed project. The information provided is sufficient to meet the criteria listed under Section 1605(b) of ARRA, OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters April 28, 2009 Memorandum: Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The basis for this project waiver is the authorization provided in Section 1605(b)(2). Due to the lack of production of this product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet the Authority's technical specifications, a waiver from the Buy American requirement is justified.
The Administrator's March 31, 2009, Delegation of Authority Memorandum provided Regional Administrators with the authority to issue exceptions to Section 1605 of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients. Having established both a proper basis to specify the particular good required for this project, and that this manufactured good was not available from a producer in the United States, the Authority is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of a Leitner-Poma Leitwind LTW 77 1.5 MW wind turbine generator, as specified in its December 15, 2010 waiver request. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers “based on a finding under subsection (b).”
Pub. L. 111-5, Section 1605.
Federal Communications Commission.
Notice.
In this document, the Commission seeks comment on a wide range of issues concerning how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. The Commission also seeks government-to-government consultation with Native Nations, input from inter-Tribal government associations and Native representative organizations, and input from the public on the best ways to move forward. The Commission is committed to ensuring that all Americans have access to emerging services and technologies, with Native Nations being at the forefront of the Commission's efforts.
Comments are due on or before May 20, 2011, and reply comments due on or before July 5, 2011.
You may submit comments, identified by [CG Docket No. 11-41 and/or FCC 11-30], by any of the following methods:
•
• Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
•
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street, 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.
In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, or via email to
Cynthia Bryant, Office of Native Affairs and Policy at (202) 418-8164 (voice), (202) 418-0431 (TTY), or e-mail at
This is a summary of the Commission's
The full text of document FCC 11-30 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and 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., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
Pursuant to 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated in the
Pursuant to 47 CFR 1.1200
The
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Finally, recognizing that the
Pursuant to sections 1, 2, 4(i), 4(j), 7(a), 11, 214, 225, 254, 255, 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308, 332, 403, 706, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157(a), 161, 214, 225, 254, 255, 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308, 332, 404, 706, and 716, and section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, document FCC 11-30
Worldwide Logistics Co., Ltd. (Worldwide) is a company based in the People's Republic of China, providing service as a non-vessel-operating common carrier (NVOCC). Worldwide registered with the FMC as a foreign-based NVOCC in September 2004. Worldwide's reported address is 14F-16F Junjiang International Tower, No. 228 Ning Guo Road, Yangpu District, Shanghai, PRC 200090. It is a part of the Worldwide Logistics Group, said to be one of the leading integrated logistics service providers in China.
Worldwide currently holds itself out as an NVOCC pursuant to its automated tariff No. 019194-001. Its tariff is maintained by Distribution Publications, Inc., and is published electronically at
It appears that Worldwide originated and substantially participated in an ongoing practice of misdescribing cargo to the transporting ocean common carrier since at least April 2008. With respect to those shipments apparently misdescribed, Worldwide was identified as the shipper signatory to various service contracts with ocean common carriers
It also appears that for these same shipments, Worldwide acted as a common carrier in relation to its NVOCC customers and issued its own NVOCC bill of lading. Worldwide has maintained an electronic tariff since September 17, 2004. However, as indicated by Worldwide's debit notes, the rate assessed by Worldwide to its NVOCC customers appears to differ substantially from its published rates. Accordingly, it appears that Worldwide provided service that was not in accordance with its published tariff, in violation of 10(b)(2) of the Shipping Act.
(1) whether Worldwide Logistics Co., Ltd. violated section 10(a)(1) of the Shipping Act by obtaining transportation at less than the rates and charges otherwise applicable by an unjust or unfair device or means;
(2) whether Worldwide Logistics Co., Ltd. violated section 10(b)(2) of the Shipping Act by providing service other than at the rates, charges, and classifications set forth in its published NVOCC tariff or applicable NSA;
(3) whether, in the event violations of sections 10(a)(1) or 10(b)(2) of the Shipping Act are found, civil penalties should be assessed against Worldwide Logistics Co., Ltd. and, if so, the amount of penalties to be assessed;
(4) whether, in the event violations of sections 10(a)(1) or 10(b)(2) of the Shipping Act are found, the tariff(s) of Worldwide Logistics Co., Ltd. should be suspended; and
(5) whether, in the event violations are found, an appropriate cease and desist order should be issued.
By the Commission.
11 a.m., Tuesday, April 12, 2011.
The Richard V. Backley Hearing Room, 9th Floor, 601 New Jersey Avenue, NW., Washington, DC.
Open.
The Federal Mine Safety and Health Review Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen (202) 434-9950/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before May 2, 2011.
Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Google, File No. 102 3136” to facilitate the organization of comments. Please note that your comment—including your name and your state—will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, at
Because comments will be made public, they should not include any sensitive personal information, such as an individual's Social Security Number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential * * * as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2).” Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).
Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink:
A comment filed in paper form should include the “Google, File No. 102 3136” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to
The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, at
Kathryn Ratte (202-326-3514), FTC Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for March 30, 2010), on the World Wide Web, at
Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the
The Federal Trade Commission has accepted, subject to final approval, a consent agreement from Google Inc. (“Google”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
On February 9, 2010, Google launched a social networking service called Google Buzz (“Google Buzz” or “Buzz”) within Gmail, its web-based email product. Google Buzz is a platform that allows users to share updates, comments, photos, videos, and other information through posts or “buzzes” made either publicly or privately to individuals or groups of users. Google used the information of consumers who signed up for Gmail, including first and last name and email contacts, to populate the social network, which, in many instances, resulted in certain previously private information being made public.
The Commission's complaint alleges that Google violated Section 5(a) of the FTC Act by falsely representing to users signing up for Gmail that it would use their information only for the purpose of providing them with web-based email. The complaint also alleges that Google falsely represented to consumers that it would seek their consent before using their information for a purpose other than that for which it was collected. The complaint further alleges that Google deceived consumers about their ability to decline enrollment in certain features of Buzz. In addition, the complaint alleges that Google failed to disclose adequately that certain information would become public by default through the Buzz product. Finally, the complaint alleges that Google misrepresented its compliance with the U.S.-EU Safe Harbor Framework, a mechanism by which U.S. companies may transfer data from the European Union to the United States consistent with European law.
The proposed order contains provisions designed to prevent Google from engaging in the future in practices similar to those alleged in the complaint with respect to all Google products and services, not only Gmail or Buzz.
Part I of the proposed order prohibits Google from misrepresenting the privacy and confidentiality of any “covered information,” as well as the company's compliance with any privacy, security, or other compliance program, including but not limited to the U.S.-EU Safe Harbor Framework. “Covered information” is defined broadly to include an individual's: (a) First and last name; (b) home or other physical address, including street name and city or town; (c) email address or other online contact information, such as a user identifier or screen name; (d) persistent identifier, such as IP address; (e) telephone number, including home telephone number and mobile telephone number; (f) list of contacts; (g) physical location; or any other information from or about an individual consumer that is combined with (a) through (g) above.
Part II of the proposed order requires Google to give Google users a clear and prominent notice and to obtain express affirmative consent prior to sharing the Google user's information with any third party in connection with a change, addition or enhancement to any product or service, where such sharing is contrary to stated sharing practices in effect at the time the Google user's information was collected. This provision is limited to users of Google's products and services whom Google has identified at the time it shares their information with third parties, for example, users who are logged into a Google product.
Part III of the proposed order requires Google to establish and maintain a comprehensive privacy program that is reasonably designed to: (1) Address privacy risks related to the development and management of new and existing products and services, and (2) protect the privacy and confidentiality of covered information. The privacy program must be documented in writing and must contain privacy controls and procedures appropriate to Google's size and complexity, the nature and scope of its activities, and the sensitivity of covered information. Specifically, the order requires Google to:
• Designate an employee or employees to coordinate and be responsible for the privacy program;
• Identify reasonably-foreseeable, material risks, both internal and external, that could result in the unauthorized collection, use, or disclosure of covered information and assess the sufficiency of any safeguards in place to control these risks;
• Design and implement reasonable privacy controls and procedures to control the risks identified through the privacy risk assessment and regularly
• Develop and use reasonable steps to select and retain service providers capable of appropriately protecting the privacy of covered information they receive from respondent, and require service providers by contract to implement and maintain appropriate privacy protections; and
• Evaluate and adjust its privacy program in light of the results of the testing and monitoring, any material changes to its operations or business arrangements, or any other circumstances that it knows or has reason to know may have a material impact on the effectiveness of its privacy program.
Part IV of the proposed order requires that Google obtain within 180 days, and on a biennial basis thereafter for twenty (20) years, an assessment and report from a qualified, objective, independent third-party professional, certifying, among other things, that: it has in place a privacy program that provides protections that meet or exceed the protections required by Part III of the proposed order; and its privacy controls are operating with sufficient effectiveness to provide reasonable assurance that the privacy of covered information is protected.
Parts V through IX of the proposed order are reporting and compliance provisions. Part V requires that Google retain all “widely disseminated statements that describe the extent to which respondent maintains and protects the privacy and confidentiality of any covered information, along with all materials relied upon in making or disseminating such statements, for a period of three (3) years. Part V further requires Google to retain, for a period of six (6) months from the date received, all consumer complaints directed at Google, or forwarded to Google by a third party, that allege unauthorized collection, use, or disclosure of covered information and any responses to such complaints. Part V also requires Google to retain for a period of five (5) years from the date received, documents that contradict, qualify, or call into question its compliance with the proposed order. Finally, Part V requires that Google retain all materials relied upon to prepare the third-party assessments for a period of three (3) years after the date that each assessment is prepared.
Part VI requires dissemination of the order now and in the future to principals, officers, directors, and managers, and to all current and future employees, agents, and representatives having supervisory responsibilities relating to the subject matter of the order. Part VII ensures notification to the FTC of changes in corporate status. Part VIII mandates that Google submit an initial compliance report to the FTC and make available to the FTC subsequent reports. Part IX is a provision “sunsetting” the order after twenty (20) years, with certain exceptions.
The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission.
I concur in accepting, subject to final approval, a consent agreement from Google Inc. (“Google) for public comment. However, it should be emphasized that this consent agreement is being accepted, subject to final approval. I have substantial reservations about Part II of the consent agreement. My concerns are threefold. Before I describe them, however, I want to make clear that I do not mean to defend Google. Google can—and should—speak for itself. However, I believe that, as a Commission, we must always be concerned that a consent agreement, like a litigated decree, is consistent with the public interest. For that reason, I am opposed to accepting consent agreements that may be contrary to the public interest because a party is willing to agree to terms that hurt other competitors as much or more than the terms will hurt that party. That may occur, for example, when a consent agreement is used as “leverage in dealing with the practices of other competitors.” Part II of the proposed consent order may be susceptible to this happening.
More specifically, the crux of the violation alleged in the Complaint is that Google represented in its general “Privacy Policy” that “When you sign up for a particular service that requires registration, we ask you to provide personal information. If we use this information in a manner different from the purpose for which it was collected, then we will ask for your consent prior to such use. However, when Google initiated its social networking service (“Google Buzz”) it used personal information previously collected for other purposes without asking for users' consent prior to this use. Part II of the proposed consent order prohibits Google, without prior “express affirmative consent” (an “opt-in” requirement) from engaging in any “new or additional sharing” of previously collected personal information “with any third party” that results from “any change, addition, or enhancement” to any Google product or service. First, Google did not represent in its general “Privacy Policy” (or otherwise, according to the Complaint) that the “consent” it would seek would require consumers to “opt in” as required by Part II. Indeed, the Complaint does not allege that Google ever asked consumers to signify their “consent” by “opting in” (as opposed to “opting out”). To be sure, insofar as Google did not seek “consent” at all, its representation in its general “Privacy Policy” was deceptive in violation of Section 5. But the “opt in” requirement in Part II is seemingly brand new. It does not echo what Google promised to do at the outset. In the separate Statement that I issued when the staff issued its preliminary Privacy Report, I expressed concern about whether an “opt in” requirement in these circumstances might sometimes be contrary to the public interest. Then, as now, I was concerned that it might be used as leverage in consent negotiations with other competitors.
Second, Part II of the proposed consent order applies whenever Google engages in any “new or additional sharing” of previously collected personal information “with any third party” for the next twenty years, not just any “material” new or additional sharing of that information. Because internet business models (and technology) change so rapidly, Google (and its competitors) are bound to engage in “new or additional” sharing of previously collected information with third parties during that period. That means that Part II is certain to apply (and with some frequency) during that period as long as Google does not warn users or consumers in its “general Privacy Policy” that it may engage in such sharing in the future.
Third, Part II applies not just to Google's social networking services or products, but to every single Google service or product that undergoes some “change, addition, or enhancement” (terms that are not defined in Part II) that results from the sharing of certain information. As a practical matter, this means that Google is at risk that Part II will apply across the board to every existing product or service that Google offers, including any product or service that involves the tracking and sharing of identified Google users' browsing behavior.
In short, on the face of it, Part II seems to be contrary to Google's self-interest. I therefore ask myself if Google willingly
Nor am I comforted that the purpose and effect of Part II may be to “fence in” Google. I am aware of the teaching of
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request for nominations for public members.
42 U.S.C. 299c establishes a National Advisory Council for Healthcare Research and Quality (the Council). The Council is to advise the Secretary of HHS (Secretary) and the Director of the Agency for Healthcare Research and Quality (AHRQ) on matters related to activities of the Agency to improve the quality, safety, efficiency, and effectiveness of health care for all Americans.
Seven current members' terms will expire in November 2011. To fill these positions, we are seeking individuals who are distinguished: (1) In the
Nominations should be received on or before 60 days after date of publication.
Nominations should be sent to Ms. Karen Brooks, AHRQ, 540 Gaither Road, Room 3006, Rockville, Maryland 20850. Nominations may also be e-mailed to
Ms. Karen Brooks, AHRQ, at (301) 427-1801.
42 U.S.C. 299c provides that the Secretary shall appoint to the National Advisory Council for Healthcare Research and Quality twenty one appropriately qualified individuals. At least seventeen members shall be representatives of the public and at least one member shall be a specialist in the rural aspects of one or more of the professions or fields listed in the above summary. In addition, the Secretary designates, as ex officio members, representatives from other Federal agencies, principally agencies that conduct or support health care research, as well as Federal officials the Secretary may consider appropriate. 42 U.S.C. 299c(c)(3). The Council meets in the Washington, DC, metropolitan area, generally in Rockville, Maryland, approximately three times a year to provide broad guidance to the Secretary and AHRQ's Director on the direction of and programs undertaken by AHRQ.
Seven individuals will be selected presently by the Secretary to serve on the Council beginning with the meeting in the spring of 2012. Members generally serve 3-year terms. Appointments are staggered to permit an orderly rotation of membership.
Interested persons may nominate one or more qualified persons for membership on the Council. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; and (2) a statement that the nominee is willing to serve as a member of the Council. Selected candidates will be asked to provide detailed information concerning their financial interests, consultant positions and research grants and contracts, to permit evaluation of possible sources of conflict of interest. Please note that Federally registered lobbyists are not permitted to serve on this advisory board. Please note that once you are nominated, AHRQ may consider your nomination for future positions on the Council.
The Department seeks a broad geographic representation. In addition, AHRQ conducts and supports research concerning priority populations, which include: low-income groups; minority groups; women; children; the elderly; and individuals with special health care needs, including individuals with disabilities and individuals who need chronic care or end-of-life health care. See 42 U.S.C. 299(c). Nominations with expertise in health care for these priority populations are encouraged.
The meeting announced below concerns Epidemiologic Research and Surveillance in Epilepsy, Funding Opportunity Announcement (FOA) DP11-003, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces that CMS is exercising its authority under section 1102(f) of the Affordable Care Act to stop accepting applications for the Early Retiree Reinsurance Program, due to the availability of funds, as of May 5, 2011.
David Mlawsky, (410) 786-6851.
The Patient Protection and Affordable Care Act (Pub. L. 111-148, enacted on March 23, 2010) (the Affordable Care Act), included a provision that establishes the temporary Early Retiree Reinsurance Program (ERRP), which provides reimbursement to eligible sponsors of employment-based plans for a portion of the costs of providing health coverage to early retirees (and eligible spouses, surviving spouses, and dependents of such retirees). Section 1102(a)(1) of the Affordable Care Act, which is codified at 42 U.S.C. 18002(a)(1), requires the Secretary to establish the program within 90 days of enactment of the law (by June 21, 2010). On May 5, 2010, we published an
Based on the amount of the $5 billion in appropriated program funding that remains available and the rate at which it is being disbursed, we are announcing, under section 1102(f) of the Affordable Care Act, that we will no longer accept applications for the program after May 5, 2011. We have projected the availability of program funding based on the rate at which appropriated funds are currently being used to reimburse plan sponsors, and we have concluded that we have approved a sufficient number of applications to exhaust the program funding. Applications were first accepted by the ERRP on June 29, 2010, and therefore, plan sponsors have so far had 9 months to submit applications if desired. As a result of this agency action, any program applications that CMS receives after May 5, 2011 will not be accepted for processing. Applications must be received in the program's Intake Center on or before May 5, 2011, to be accepted for processing. A copy of the application, as well as information on how to complete and send it, and where to send it, can be found on
We note that our decision to no longer accept applications after May 5, 2011, is based on the actual availability of remaining appropriated ERRP funds and the rate at which we have been disbursing reimbursement, as opposed to the projected amounts of ERRP reimbursements that applicants listed in their ERRP applications. Should circumstances related to the availability of ERRP funding change, we may decide it is appropriate to resume accepting ERRP applications. If this occurs, we will provide such notice in the
This document does not impose information collection and recordkeeping requirements. So, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
42 U.S.C. 18002(f).
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “International Cooperation on Cosmetics Regulations (ICCR)—Preparation for ICCR-5 Meeting in Paris, France” to provide information and receive comments on the International Cooperation on Cosmetics Regulations (ICCR) as well as the upcoming meetings in Paris, France. The topics to be discussed are the topics for discussion at the forthcoming ICCR Steering Committee meeting. The purpose of the meeting is to solicit public input prior to the next steering committee and expert working group meetings in Paris, France scheduled on June 28 through July 1, 2011.
If you need special accommodations due to a disability, please contact Kimberly Franklin (
Interested persons may present data, information, or views orally or in writing, on issues pending at the public meeting. Time allotted for oral presentations may be limited to 10 minutes. Those desiring to make oral presentations should notify the contact person by April 22, 2011, and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses, telephone number, fax, and e-mail of proposed participants, and an indication of the approximate time requested to make their presentation.
The purpose of the multilateral framework on the ICCR is to pave the way for the removal of regulatory obstacles to international trade while maintaining global consumer protection.
ICCR is a voluntary international group of cosmetics regulatory authorities from the United States, Japan, the European Union, and Canada. These regulatory authority members will enter into constructive dialogue with their relevant cosmetics' industry trade associations. Currently, the ICCR members are Health Canada; the European Directorate General for Enterprise and Industry; the Ministry of Health, Labor and Welfare of Japan; and the U.S. Food and Drug Administration. All decisions made by the consensus will be compatible with the laws, policies, rules, regulations, and directives of the respective administrations and governments. Members will implement and/or
The agenda for the public meeting will be made available on the Internet at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
The public is welcome to attend the meeting at NIH, Building 29B, Conference Rooms A and B, where a speakerphone will be provided. Public participation in the meeting is limited to the use of the speakerphone in the conference room. Important information about transportation and directions to the NIH campus, parking, and security procedures is available on the Internet at
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Gail Dapolito at least 7 days in advance of the meeting.
FDA 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 (5 U.S.C. app. 2).
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Interagency Breast Cancer and Environmental Research Coordinating Committee.
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 at least 10 days in advance of the meeting.
Any member of the public interested in presenting oral comments to the committee should submit their remarks in writing at least 10 days in advance of the meeting. Comments in document format (
Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral comments you wish to present. Only one representative per organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. The statement should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person. Oral comments will begin at approximately 4 p.m. on Friday, May 13, 2011. Anyone who wishes to attend the meeting and/or submit comments to the committee is asked to RSVP via the following e-mail:
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR part 404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in PCT Patent Application No. PCT/US03/37208 [HHS Ref. No. E-339-2002/0-PCT-02], filed November 20, 2003, which published as WO 2004/048928 on June 10, 2004, now expired, entitled “Method And Apparatus for Performing Multiple Simultaneous Manipulations of Biomolecules In a Two-Dimensional Array;” U.S. Patent Application No. 10/535,521 [HHS Ref. No. E-339-2002/0-US-03], filed May 18, 2005, now abandoned, which published as US-2006-0147926 A1 on July 6, 2006 entitled “Method And Apparatus for Performing Multiple Simultaneous Manipulations of Biomolecules In a Two-Dimensional Array;” U.S. Patent Application No. 12/587,976 [HHS Ref. No. E-339-2002/0-US-04], filed October 14, 2009, which published as US-2010-010506 on April 29, 2010 entitled “Device for External Movement Manipulation of Nucleic Acids and/or Proteins;” U.S. Provisional Patent Application No. 61/206,458 [HHS Ref. No. E-130-2006/0-US-01] filed January 30, 2009, entitled, “Amplification Platform and Methods of Use Thereof, now expired, and PCT Patent Application No. PCT/US10/022586 [HHS Ref. No. E-130-2006/0-PCT-02] filed January 29, 2010 and which published as WO 2010/088517 on August 5, 2010, entitled, “Methods and Systems for Purifying, Transferring and/or Manipulating Nucleic Acids;” and all continuing applications and foreign counterparts to 2-D Bio, LLC, having a place of business in Gaithersburg, Maryland. The patent rights in these inventions have been assigned to the United States of America. However, the patent rights for HHS Ref. No. E-130-2006/0-US-01 and HHS Ref. No. E-130-2006/0-PCT-02 are co-owned and co-assigned to the University of Maryland. The United States of America has obtained an exclusive license to the University of Maryland's rights in the invention.
The prospective exclusive license territory may be “worldwide”, and the field of use may be limited to “development of devices for sale and services for high throughput parallel analysis and two dimensional analyses of molecules for all uses.”
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before May 5, 2011 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Kevin W. Chang, PhD, Senior Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804;
The subject technologies are methods, systems, and devices for purifying, transferring, or manipulating biomolecules, including nucleic acids from a sample, or performing a combination thereof, that substantially preserve two-dimensional (2D) spatial information on the original locations of the biomolecules within the sample.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the Laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified Laboratories and Instrumented Initial Testing Facilities (IITF) is published in the
If any Laboratory/IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1042, One Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires {or set} strict standards that Laboratories and Instrumented Initial Testing Facilities (IITF) must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies.
To become certified, an applicant Laboratory/IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a Laboratory/IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and Instrumented Initial Testing Facilities (IITF) in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A Laboratory/IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated November 25, 2008 (73 FR 71858), the following Laboratories and Instrumented Initial Testing Facilities (IITF) meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Coast Guard, DHS.
Notice.
The Coast Guard announces that it is removing the conditions of entry on vessels arriving from the country of Islamic Republic of Mauritania.
The policy announced in this notice is effective on April 5, 2011.
This notice is part of docket USCG-2011-0124 and is available online by going to
If you have questions on this notice, call Mr. Michael Brown, International Port Security Evaluation Division, United States Coast Guard, telephone 202—372-1081. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826 or (toll free) 1-800-647-5527.
Section 70110 title 46, United States Code, enacted as part of section 102(a) of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295, Nov. 25, 2002) authorizes the Secretary of Homeland Security to impose conditions of entry on vessels requesting entry into the United States arriving from ports that are not maintaining effective anti-terrorism measures. It also requires public notice
Based on recent information, the Coast Guard has determined that the Islamic Republic of Mauritania is now maintaining effective anti-terrorism measures, and is accordingly removing the conditions of entry announced in previously published Notice of Policy. With this notice, the current list of countries not maintaining effective anti-terrorism measures is as follows: Cambodia, Cameroon, Republic of the Congo, Cuba, Equatorial Guinea, Guinea-Bissau, Indonesia, Iran, Liberia, Madagascar, Sao Tome and Principe, Syria, Timor-Leste, and Venezuela.
This notice is issued under authority of 46 U.S.C. 70110(a)(3).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-1957-DR), dated February 18, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of New York is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 18, 2011.
Columbia, Dutchess, Kings, and Rockland Counties for emergency protective measures (Category B), including snow assistance, under the Public Assistance program for any continuous 48-hour period during or proximate to the incident period.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Room 4160, Washington, DC 20410-5000; telephone 202.402.3400 (this is not a toll-free number) or email Ms. Pollard at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street, SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This notice is soliciting comments from members of the public and affected agencies concerning the extension of the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
This Notice also lists the following information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Fish and Wildlife Service, Interior; National Oceanic and Atmospheric Administration, Commerce.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (FWS) and the National Atmospheric and Oceanic Administration (NOAA), intend to prepare the monument management plan (MMP) for the Marianas Trench Marine National Monument (Monument) established by Presidential Proclamation 8335. The MMP will satisfy FWS comprehensive conservation plan (CCP) requirements for two units of the National Wildlife Refuge System (NWRS) contained therein. When the draft MMP is complete, we will advertise its availability and again seek public comment.
We furnish this notice to advise the public and other Federal and local agencies of our intentions, and to obtain suggestions and information on the scope of issues to consider during the planning process.
An environmental assessment (EA) to evaluate the potential effects of various management alternatives will also be prepared. The EA will provide resource managers with the information needed to determine if the potential effects may be significant and warrant preparation of an Environmental Impact Statement (EIS), or if the potential impacts lead to a Finding of No Significant Impact (FONSI).
To ensure consideration, we must receive your written comments by May 5, 2011.
Additional information about the Monument and its two refuge units is available at
Heidi Hirsh, Natural Resource Management Specialist, (808) 944-2223.
On January 6, 2009, President George W. Bush issued Proclamation No. 8335 (Proclamation), establishing the Monument under the authority of the Antiquities Act of 1906. The Monument consists of three units: The Islands Unit encompasses the waters and submerged lands of the three northernmost Mariana Islands from the mean low water line out approximately 50 nautical miles (nmi); the Volcanic Unit encompasses each designated volcanic feature and the surrounding submerged lands out to 1 nmi; and the Trench Unit encompasses the submerged lands within the Mariana Trench.
The Monument encompasses approximately 61 million acres of submerged lands and certain waters of the Mariana Archipelago. The Trench Unit contains approximately 50.5 million acres of submerged lands, the Volcanic Unit includes approximately 55,912 acres of submerged lands, and the Islands Unit encompasses approximately 10.5 million acres of submerged lands and waters.
The Secretary of the Interior, in consultation with the Secretary of Commerce, has responsibility for management of the Monument; except that the Secretary of Commerce, in consultation with the Secretary of the Interior, has primary responsibility for management with respect to fishery-related activities regulated pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801
The Proclamation requires the Secretaries of the Interior and Commerce to prepare management plans within their respective authorities for the Monument, and promulgate implementing regulations that address specific actions necessary for the proper care and management of the Monument. With this notice, the Department of the Interior and the Department of Commerce (Departments) are commencing development of the MMP. The Departments will work cooperatively under Fish and Wildlife Service's lead in this process. The Commerce Department, in consultation with the Secretary of the Interior, is working with the Western Pacific Fishery Management Council pursuant to the Magnuson-Stevens Fishery Conservation and Management Act and the Proclamation to develop a fisheries ecosystem plan amendment and related regulations. To the extent they relate to waters within the Monument, the plan amendment and implementing regulations will be one component of the MMP. The Departments intend to cooperate and coordinate in the development and timing of these planning and management processes.
To carry out his responsibilities from the President under the Proclamation, by Secretary's Order 3284 (Order) dated January 16, 2009, the Secretary of the Interior delegated all of his management responsibility for the Monument to the
The Volcanic Unit contains unique geological features found nowhere else in the world, including the largest active mud volcanoes, vents expelling almost pure liquid carbon dioxide, a pool of liquid sulfur, and one of only a few places in the world where photosynthetic and chemosynthetic communities of life coexist. The Trench Unit, where the Pacific Plate plunges into the Earth's mantle, contains the deepest point on Earth. The Islands Unit encompasses the waters of the archipelago's three northern islands, which are among the most biologically diverse in the western Pacific Ocean, and includes the greatest diversity of seamount and hydrothermal vent life yet discovered.
The MMP's format will include elements similar to a NWRS CCP, and the planning process for those elements will be conducted in a manner similar to the CCP planning and public involvement process. The MMP will be updated every 15 years.
The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee) (Refuge System Administration Act), requires FWS to develop a CCP for each national wildlife refuge or planning unit. 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 NWRS, consistent with sound principles of fish and wildlife management and natural resource conservation, legal mandates, and applicable policies. In addition to outlining broad management direction for 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 conduct environmental reviews of various management alternatives and develop an EA in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
The Fish and Wildlife Service, as lead agency for NEPA purposes, will also designate and involve as cooperating agencies the Department of Commerce, through NOAA; the Department of Defense; the Department of State; and the Government of the Commonwealth of the Northern Mariana Islands (CNMI), in accordance with NEPA and Executive Order 13352 of August 26, 2004, titled Facilitation of Cooperative Conservation.
The MMP is to provide for the following activities, to the extent appropriate to Department of the Interior and Department of Commerce authorities and the Proclamation:
• Management of the Islands Unit, in consultation with the Government of the CNMI, including designating specific roles and responsibilities, and identifying the means of consultation on management decisions as appropriate and consistent with the respective authorities and jurisdictions of the CNMI and the Secretaries of the Interior and Commerce.
• Public education programs and public outreach regarding the Monument's coral reef ecosystem, related marine resources and species, and conservation efforts.
• Traditional access to the Monument by indigenous persons, as identified by the Secretaries of the Interior and Commerce in consultation with the Government of the CNMI, for culturally significant subsistence and other cultural and religious uses.
• A program to assess and promote Monument-related scientific exploration and research, tourism, and recreational and economic activities and opportunities in the CNMI.
• A process to consider requests for recreational fishing permits in certain areas of the Islands Unit.
• Programs for monitoring and enforcement necessary to ensure that scientific exploration and research, tourism, and recreational and commercial activities do not degrade the Monument's coral reef ecosystem or related marine resources or species, or diminish the Monument's natural character.
The FWS and NOAA will conduct the planning process in a manner that will provide participation opportunities for the public, Federal and local government agencies, and other interested parties. At this time, we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of the Monument. Opportunities for additional public input will be announced throughout the planning process. We may hold public meetings to help share information and obtain comments.
We identified the following preliminary issues and opportunities that we may address in the MMP. We expect to identify additional issues during public scoping.
• Climate change impacts and adaptation.
• Marine debris impacts and removal.
• Invasive species prevention and control.
• Other potential threats to the ecosystem (e.g., trespass; illegal fishing; and shipwrecks, groundings, and spills).
• Emergency response to natural and manmade disasters and natural resources damage assessments.
• Operational capabilities for effective ecosystem monitoring, surveillance, and enforcement.
• Habitat conservation and restoration.
• Biological and abiotic inventory and monitoring.
• Protected resources and their habitats, including coral reefs, marine clams, apex predators, marine mammals, sea turtles, seabirds, and fishes.
• Historic and cultural resources, including maritime heritage.
• Public education and outreach.
• International programs and collaboration.
• Scientific exploration and research opportunities.
• Developing an appropriate permitting regime for activities within the Monument.
• Determining if bioprospecting is appropriate and compatible.
The FWS and NOAA, in consultation with the Mariana Monument Advisory Council, and the Government of the CNMI, will be considering your comments during development of the Draft MMP/CCPs/EA.
Before including your address, phone number, 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 comments 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; National Oceanic and Atmospheric Administration, Commerce.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA), intend to prepare the monument management plan (MMP) for the Pacific Remote Islands Marine National Monument (Monument), established by Presidential Proclamation 8336. Additionally, the FWS also intends to prepare new or revised comprehensive conservation plans (CCPs) for the following national wildlife refuges (Refuges) contained therein: Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Palmyra Atoll, and Wake Atoll. When the draft MMP is complete, we will advertise its availability and again seek public comment. We furnish this notice to advise the public and other Federal agencies of our intentions, and to obtain suggestions and information on the scope of issues to consider during the planning process.
An environmental assessment (EA) to evaluate the potential effects of various management alternatives will also be prepared. The EA will provide resource managers with the information needed to determine if the potential effects may be significant and warrant preparation of an Environmental Impact Statement (EIS), or if the potential impacts lead to a Finding of No Significant Impact (FONSI).
To ensure consideration, we must receive your comments by May 5, 2011.
Additional information about the Monument and its seven Refuge units is available at
Susan White, Project Leader, (808) 792-9550.
On January 6, 2009, President George W. Bush issued Proclamation No. 8336 (Proclamation), establishing the Monument under the authority of the Antiquities Act of 1906. The Monument incorporates approximately 86,888 square miles within its boundaries, which extend 50 nautical miles (nmi) from the mean low water lines of Baker, Howland, and Jarvis Islands; Johnston, Palmyra, and Wake Atolls; and Kingman Reef. The Secretary of the Interior, in consultation with the Secretary of Commerce, has responsibility for management of the Monument, including out to 12 nmi from the mean low water lines of Baker, Howland, and Jarvis Islands; Johnston, Palmyra, and Wake Atolls; and Kingman Reef, pursuant to applicable legal authorities. The Secretary of Commerce, through NOAA, and in consultation with the Secretary of the Interior, has primary responsibility for management of the Monument seaward from 12 to 50 nmi with respect to fishery-related activities regulated pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801
The Proclamation requires the Secretaries of the Interior and Commerce to prepare management plans within their respective authorities for the Monument, and promulgate implementing regulations that address specific actions necessary for the proper care and management of the Monument. With this notice, the Department of the Interior and Department of Commerce (Departments) are commencing development of the MMP. The Departments will work cooperatively under the Fish and Wildlife Service's lead in this process. The Commerce Department, in consultation with the Secretary of the Interior, is working with the Western Pacific Fishery Management Council pursuant to the Magnuson-Stevens Fishery Conservation and Management Act and Proclamation to develop a fisheries ecosystem plan amendment and related regulations. To the extent they relate to waters within the Monument, the plan amendment and implementing regulations will be one component of the MMP. The Departments intend to cooperate and coordinate in the development and timing of these planning and management processes.
To carry out his responsibilities from the President under the Proclamation, on January 16, 2009, the Secretary of the Interior delegated his authority for Monument management to the FWS Director, and extended the boundaries of the Baker Island, Howland Island, and Jarvis Island Refuges from 3 nmi to 12 nmi from the mean low water lines of the emergent land. The Secretary also extended the Johnston Atoll Refuge boundary to 12 nmi from the mean low water line of the emergent land, and added the emergent and submerged lands and waters of Wake Island out to 12 nmi as a unit of the National Wildlife Refuge System (NWRS). In accordance with the Proclamation, the Director will not commence management of emergent lands at Wake Island unless and until a use agreement between the Secretary of the Air Force and the Secretary of the Interior is terminated. The Secretary of Defense also continues to manage those portions of the emergent lands of Johnston Atoll under the administrative jurisdiction of the Defense Department until such administrative jurisdiction is terminated, at which time those emergent lands shall be administered as part of the Johnston Atoll Refuge.
Within the boundaries of the Monument, the FWS also continues to administer pre-existing refuges at Baker, Howland, and Jarvis Islands; Johnston and Palmyra Atolls; and Kingman Reef, in accordance with the National Wildlife Refuge System Administration
Howland Island, Baker Island, and Jarvis Island are unique places for climate change research and other research conducted at the equator. These areas have deep-water corals, coral reefs, corals in near-pristine condition, and predator-dominated marine ecosystems with a biomass of top predators that exceeds the Great Barrier Reef's. At the conclusion of a 3-year planning process, CCPs were completed for the Baker Island, Howland Island, and Jarvis Island Refuges on September 24, 2008 (73 FR 76678; December 17, 2008). For the current MMP/CCP planning process, we will focus on appropriate conservation and management regimes for the three Refuges, based on their inclusion in the Monument and their expanded boundaries. The existing CCPs for the three Refuges will be revised as needed.
Kingman Reef and Palmyra Atoll have relatively undisturbed coral reefs, with the highest levels of coral diversity in the central Pacific Ocean. Kingman Reef has the greatest known fish biomass and proportion of apex predators of any coral reef ecosystem that has been scientifically studied in the world. We received public comments regarding management of the Kingman Reef and Palmyra Atoll Refuges during our CCP public scoping period held in June 2007. We will review those comments again as part of the current MMP/CCP planning and public involvement process.
Johnston Atoll's coral reefs help connect the Hawaiian archipelago reef communities to others in the Pacific. They are the originating source for much of the larvae for the Hawaiian Islands' corals, invertebrates, and other reef fauna. The Atoll's reefs have the deepest reef-building corals on record. Wake Atoll encompasses possibly the oldest living coral atoll in the world, and has healthy and abundant coral and fish populations. No previous CCP planning occurred for the Johnston Atoll and Wake Atoll Refuges.
The MMP's format will include elements similar to a NWRS CCP, and the planning process will be conducted in a manner similar to the CCP planning and public involvement process for those elements. The Refuge System Administration Act requires that a CCP be developed for each national wildlife refuge or planning unit. The purpose for developing a CCP is to provide refuge managers with a 15-year direction for achieving refuge purposes and contributing toward the mission of the NWRS, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and applicable policies. In addition to outlining broad management direction for conserving wildlife and habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the MMP and CCPs at least every 15 years consistent with the Refuge System Administration Act.
Each unit of the NWRS was established for specific purposes. We use a refuge's purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the mission of the NWRS, and to determine how the public can use each refuge. The CCP 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 recreational opportunities that are compatible with each refuge's establishing purposes and the mission of the NWRS.
We will conduct environmental reviews of various alternatives and develop an EA in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
The Fish and Wildlife Service, as lead agency for NEPA purposes, will also designate and involve as a cooperating agency the Department of Commerce, through NOAA, in accordance with NEPA and Executive Order 13352 of August 26, 2004, titled Facilitation of Cooperative Conservation.
The FWS and NOAA will conduct the planning process in a manner that will provide participation opportunities for the public, Federal agencies, and other interested parties. At this time, we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of the Monument and the Refuges. Opportunities for additional public input will be announced throughout the planning process. We may hold public meetings to help share information and obtain comments.
We have identified the following preliminary issues, concerns, and opportunities that we may address in the MMP/CCPs. We may identify additional issues during public scoping.
• Climate change impacts and adaptation.
• Marine debris impacts and removal.
• Invasive species prevention and control.
• Other potential threats to the ecosystem (
• Emergency response to natural and manmade disasters and natural resources damage assessments.
• Operational capabilities for effective ecosystem monitoring, surveillance, and enforcement.
• Habitat conservation and restoration.
• Biological and abiotic inventory and monitoring.
• Protected resources and their habitats, including coral reefs, marine clams, apex predators, marine mammals, sea turtles, seabirds, and fishes.
• Historic and cultural resources, including maritime heritage.
• Public education and outreach.
• International programs and collaboration.
• Scientific exploration and research opportunities.
• Past and current use of military sites.
• Methods for protecting the physical, biological, and cultural resources for the long term, while providing high-quality wildlife-dependent recreation opportunities.
• Marine and terrestrial wildlife and habitat management.
• Visitor services management.
• Facilities maintenance.
• Develop an appropriate permitting regime for activities in the Monument, where necessary.
• Determine if bioprospecting is appropriate and compatible.
The FWS and NOAA will be considering your comments during the development of the Draft MMP/CCPs/EA.
Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM), Arizona Resource Advisory Council (RAC) will meet in Phoenix, Arizona, as indicated below.
Meetings will be held on May 4-5, 2011, from 8 a.m. until 4:30 p.m. each day.
The meetings will be held at the BLM National Training Center located at 9828 North 31st Avenue, Phoenix, Arizona 85051.
Dorothea Boothe, Arizona RAC Coordinator at the Bureau of Land Management, Arizona State Office, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427, 602-417-9504. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 15-member Council advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Arizona. Planned agenda items include: A welcome and introduction of new Council members; BLM State Director's update on BLM programs and issues; updates on the Arizona Water Strategy, Renewable Energy Projects, BLM Wild Lands Policy and the Northern Arizona Proposed Mineral Withdrawal Draft EIS; RAC questions on BLM District Managers' Reports; reports by the RAC working groups and other items of interest to the RAC. Members of the public are welcome to attend the RAC Working Group meetings on May 4, and the Business meeting on May 5. A half-hour public comment period, where the public may address the Council, is scheduled on May 5 from 11:30 a.m. to Noon for any interested members of the public who wish to address the Council on BLM programs and business. Depending on the number of persons wishing to speak and time available, the time for individual comments may be limited. Written comments may be sent to the Bureau of Land Management address listed above. Final meeting agendas will be available two weeks prior to the meeting dates and posted on the BLM Web site at:
Under the Federal Lands Recreation Enhancement Act, the RAC has been designated as the Recreation Resource Advisory Council (RRAC), and has the authority to review all BLM and Forest Service (FS) recreation fee proposals in Arizona. The RRAC will not review any recreation fee proposals at this meeting.
Bureau of Land Management, Interior.
Notice of public meeting.
Pursuant to the Federal Land Policy and Management Act and the Federal Advisory Committee Act, the U.S. Department of the Interior, Bureau of Land Management (BLM) John Day-Snake Resource Advisory Council (RAC) will meet as indicated below:
The RAC meeting will take place on May 3 and May 4, 2011.
The meeting will be held at The Dalles Inn, 112 West 2nd Street, The Dalles, Oregon 97058.
Mark Wilkening, Public Affairs Specialist, BLM Vale District Office, 100 Oregon Street, Vale, Oregon 97918, (541) 473-6218 or e-mail
The business meeting will take place from 8 a.m. to 5 p.m. on May 3, 2011, at The Dalles Inn, 112 West 2nd Street, The Dalles, Oregon 97058. The agenda may include such topics as: a presentation on the Environmental Impact Statement (EIS) being prepared for the Navy Bombing Range at Boardman Oregon; an update on the Baker Resource Management Plan; an update on The John Day Resource Management Plan; the Forest Service Blue Mountain Plan revision; John Day Environmental Assessment (EA) and Permit System; Status Report on the BLM Vegetation EIS step-down to the District Treatments; information on the effects of the Department of the Interior's Wild Lands policy, a report by the Federal Managers on litigation, energy projects and other issues affecting their Districts; an orientation for new members of the RAC; and other matters that may reasonably come before the council. The public is welcome to attend all portions of the meeting and may make oral comments to the Council at 1 p.m. on May 3, 2011. Those who verbally address the RAC are asked to provide a
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) received a petition for reinstatement from Makoil, Inc. and Piney Fork Production Co., for competitive oil and gas leases NVN-78597, NVN-85277, and NVN-85278 on land in Nye County, Nevada. The petition was timely filed and was accompanied by all the rentals due since the leases terminated under the law. No valid leases have been issued affecting the lands.
Atanda Clark, BLM Nevada State Office, 775-861-6632, or
The lessees have agreed to the amended lease terms for rental and royalties at rates of $10 per acre or fraction thereof per year and 16
43 CFR 3108.2-3(a) and (b).
Bureau of Land Management, Interior.
Notice.
Per 30 U.S.C. 188(d), Sleepy Hollow Oil & Gas, LLC timely filed a petition for reinstatement of competitive oil and gas leases MTM 89460, MTM 89461, MTM 89467, and MTM 89468, Fergus County, Montana. The lessee paid the required rentals accruing from the date of termination.
No leases were issued that affect these lands. The lessee agrees to new lease terms for rentals and royalties of $10 per acre and 16
The lessee met the requirements for reinstatement of the leases per Sec. 31 (d) and (e) of the Mineral Leasing Act of 1920 (30 U.S.C. 188). We are proposing to reinstate the leases, effective the date of termination subject to:
• The original terms and conditions of the leases;
• The increased rental of $10 per acre;
• The increased royalty of 16
• The $163 cost of publishing this Notice.
Teri Bakken, Chief, Fluids Adjudication Section, Bureau of Land Management Montana State Office, 5001 Southgate Drive, Billings, Montana 59101-4669, 406-896-5091.
National Park Service, Interior.
Notice of May 7, 2011 Meeting.
This notice sets forth the date of the May 7, 2011, meeting of the Flight 93 Advisory Commission.
The public meeting of the Advisory Commission will be held on Saturday, May 7, 2011, from 10 a.m. to 1 p.m. (Eastern).
The May 7, 2011, will consist of:
Keith E. Newlin, Superintendent, Flight 93 National Memorial, P. O. Box 911, Shanksville, PA 15560, 814-893-6322.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning agenda items. Address all statements to: Flight 93 Advisory Commission, P. O. Box 911, Shanksville, PA 15560. 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.
National Park Service, Interior.
Two Hundred Seventy-Ninth Notice of Meeting.
Notice is hereby given in accordance with the Federal Advisory
The meeting of the Cape Cod National Seashore Advisory Commission will be held on May 23, 2011, at 1 p.m.
The Commission members will meet in the meeting room at Headquarters, 99 Marconi Station, Wellfleet, Massachusetts.
The Commission was reestablished pursuant to Public Law 87-126 as amended by Public Law 105-280. The purpose of the Commission is to consult with the Secretary of the Interior, or his designee, with respect to matters relating to the development of Cape Cod National Seashore, and with respect to carrying out the provisions of sections 4 and 5 of the Act establishing the Seashore.
The regular business meeting is being held to discuss the following:
The meeting is open to the public. It is expected that 15 persons will be able to attend the meeting in addition to Commission members.
Interested persons may make oral/written presentations to the Commission during the business meeting or file written statements. Such requests should be made to the park superintendent prior to the meeting. 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.
Further information concerning the meeting may be obtained from the Superintendent, Cape Cod National Seashore, 99 Marconi Site Road, Wellfleet, MA 02667.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 19, 2011. Pursuant to section 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by April 20, 2011. 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.
Bureau of Reclamation, Interior.
Notice of intent to prepare a combined planning report and programmatic environmental impact statement, and notice of scoping meetings.
The Bureau of Reclamation (Reclamation) proposes to prepare a combined Planning Report and Programmatic Environmental Impact Statement (EIS) on the Integrated Water Resource Management Plan, Yakima River Basin Water Enhancement Project. The Washington State Department of Ecology (Ecology) will be a joint lead agency with Reclamation in the preparation of this Programmatic EIS, which will also be used to comply with requirements of the Washington State Environmental Policy Act (SEPA).
Written comments on the proposal, reasonable alternatives to the proposal, potential environmental impacts, and mitigation measures will be accepted through May 19, 2011 for inclusion in the scoping summary document.
Scoping meetings, preceded by open houses, will be held at the following communities, dates, and times:
• Ellensburg, Washington; May 3, 2011; open house and scoping meeting 1:30 to 3:30 pm and again from 5 to 7 pm.
• Yakima, Washington; May 5, 2011; open house and scoping meeting 1:30 to 3:30 pm and again from 5 to 7 pm.
Requests for sign language interpretation for the hearing impaired or other special assistance needs should be submitted by April 26, 2011.
Send written scoping comments, requests to be added to the mailing list, or requests for sign language interpretation for the hearing impaired or other special assistance needs, to Bureau of Reclamation, Columbia-Cascades Area Office, Attention: Candace McKinley, Environmental Program Manager, 1917 Marsh Road, Yakima, WA 98901; or by e-mail to
The Ellensburg open house and scoping meetings will be held at the Hal Holmes Center, 209 N. Ruby Street, Ellensburg, Washington 98926. The Yakima open house and scoping meetings will be held at the Yakima Area Arboretum, 1401 Arboretum Way, Yakima, Washington 98901. The meeting facilities are physically accessible to people with disabilities.
Information on this project may also be found at
Contact Candace McKinley, Environmental Program Manager, Telephone (509) 575-5848, ext. 237. TTY users may dial 711 to obtain a toll-free TTY relay.
In 1979, Congress initiated the Yakima River Basin Water Enhancement Project (YRBWEP) in response to long-standing water resource problems in the basin. The YRBWEP was charged with developing a plan to achieve four objectives: (1) Provide supplemental water for presently irrigated lands; (2) provide water for new lands within the Yakama Indian Reservation; (3) provide water for increased instream flows for aquatic life; and (4) identify a comprehensive approach for efficient management of basin water supplies.
Initial efforts in the mid-1980s (Phase 1) focused on improving fish passage by rebuilding fish ladders and constructing fish screens at existing diversions. Phase 2 in the 1990s focused on water conservation/water acquisition activities, tributary fish screens, and long-term management needs. Efforts under these initial phases were hindered by the ongoing uncertainties associated with adjudication of the basin surface waters that began in 1978. With the adjudication process now largely completed, most of these water right uncertainties have been addressed.
In 2003, Reclamation and Ecology initiated the Yakima River Basin Water Storage Feasibility Study to examine storage augmentation in the Yakima River basin. This study emphasized evaluation of a proposed Black Rock Reservoir, which was the focus of the Yakima River Basin Water Storage Feasibility Study Draft Planning Report/Environmental Impact Statement (PR/EIS) issued in January 2008.
The narrow focus of the legislative authorization in combination with comments on the Draft PR/EIS prompted Ecology to separate from the National Environmental Policy Act (NEPA) process. In mid-2008, Ecology initiated a separate evaluation of the Yakima basin's water supply problems, including consideration of habitat and fish passage needs. Reclamation continued the NEPA process consistent with its legislative authorization and issued the Yakima River Basin Water Storage Feasibility Study Final PR/EIS in December 2008. Following issuance of the Final PR/EIS, Reclamation selected the No Action Alternative. Ecology completed its study and issued a separate Final Environmental Impact Statement (FEIS) for the Yakima River Basin Integrated Water Resource Management Alternative in June 2009 under SEPA.
The Integrated Water Resource Management Alternative evaluated in the Ecology FEIS relies upon a range of water management and habitat improvement approaches comprised of seven major elements to resolve the long-standing water resource problems in the basin. Elements of the Integrated Water Resource Management Plan that will be analyzed in the Programmatic EIS include, but are not limited to:
1. Fish Passage (fish passage improvements at Cle Elum, Bumping, Clear Lake, Keechelus, Kachess, and Tieton Dams);
2. Structural/Operational Changes (subordination of power generation at Roza and Chandler Power Plants);
3. Surface Storage (new Wymer Dam and Reservoir, Bumping Reservoir enlargement, Kachess inactive storage);
4. Groundwater Storage (groundwater infiltration prior to storage control);
5. Fish Habitat (mainstem floodplain restoration program);
6. Enhanced Water Conservation (agricultural water and municipal/domestic conservation); and
7. Market-Based Reallocation of Water Resources (institutional improvements to facilitate market-based water transfers).
The proposed plan may affect Indian trust assets of the Yakama Nation and the Confederated Tribes of the Umatilla Indian Reservation. There are no known adverse or significant impacts to minority or low-income populations or communities associated with this proposal.
Reclamation is requesting early public comment and agency input to help identify significant issues and alternatives to be addressed in the Programmatic EIS. Information obtained during the scoping period will help in developing information to be included in the Programmatic EIS. A Draft Programmatic EIS is expected to be issued in winter of 2011, followed by an opportunity for public and agency review and comment. The Final Programmatic EIS is anticipated for completion in spring of 2012. A Record of Decision, describing which alternative is selected for implementation, and the rationale for its selection, would then be issued following a 30-day waiting period.
Reclamation and Ecology will conduct public scoping meetings to solicit comments on the alternatives for the Integrated Water Resource Management Plan, and to identify potential issues and impacts associated with those alternatives. Reclamation and Ecology will summarize comments received during the scoping meetings and from letters of comment received during the scoping period, identified under the
Before including your name, 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 may 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.
United States International Trade Commission.
Institution of antidumping and countervailing duty investigations and scheduling of preliminary phase investigations.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigations Nos. 701-TA-478 and 731-TA-1182 (Preliminary) under sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from China of certain steel wheels, provided for in subheading 8708.70 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of China. Unless the Department of Commerce extends the time for initiation pursuant to sections 702(c)(1)(B) or 732(c)(1)(B) of the Act (19 U.S.C. 1671a(c)(1)(B) or 1673a(c)(1)(B)), the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by May 16, 2011. The Commission's views are due at Commerce within five business days thereafter, or by May 23, 2011.
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
Mary Messer (202-205-3193) or Douglas Corkran (202-205-3057), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on January 4, 2010 (75 FR 1078, January 8, 2010) and determined on April 9, 2010 that it would conduct full reviews (75 FR 22424, April 28, 2010). Notice of the scheduling of the Commission's reviews and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these reviews to the Secretary of Commerce on March 30, 2011. The views of the Commission are contained in USITC Publication 4221 (March 2011), entitled
By order of the Commission.
Notice is hereby given that on March 18, 2011, a proposed Consent Decree in
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the U.S. EPA Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the Eastern District of Wisconsin in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street, NW., Suite 1010, Washington, DC 20530 (
Public comment is invited within 60 days of the date of this notice. Such comments, and responses thereto, will be published in the
The United States of America, acting under the direction of the Attorney General of the United States, and the States of Wisconsin, Illinois, and Michigan, by and through their respective Attorneys General (“Plaintiff States”), bring this civil action for equitable relief against Defendant Dean Foods Company (“Dean”) for violating Section 7 of the Clayton Act, 15 U.S.C. 18. The United States and the Plaintiff States allege as follows:
1. This lawsuit challenges Dean's acquisition of the Consumer Products Division of Foremost Farms USA, consummated April 1, 2009 (the “Acquisition”). Foremost Farms USA (“Foremost”) is a dairy cooperative owned by approximately 2,300 dairy farms located in seven states, including Wisconsin. Through the Acquisition, Dean acquired two dairy processing plants owned by Foremost, located in Waukesha and DePere, Wisconsin. Dean's acquisition of these plants violates Section 7 of the Clayton Act because “the effect of such acquisition may be substantially to lessen competition.” 15 U.S.C. 18.
2. The Acquisition adversely affects two types of markets. The first are the markets for the sale of school milk to individual school districts located throughout the State of Wisconsin and the Upper Peninsula of Michigan (the “UP”). The second is the market for the sale of fluid milk to purchasers located in Wisconsin, the UP, and northeastern Illinois.
3. The Acquisition eliminates one of Dean's most aggressive competitors—a competitor that engaged in pricing that Dean considered “dangerous” and “irrational.” In recent years, Dean and Foremost have been the first and fourth largest sellers of school milk and fluid milk in Wisconsin, the UP, and northeastern Illinois. With the Acquisition, Dean will account for more than 57 percent of fluid milk sales in the region. In the most recent school year, Dean and the two plants it acquired sold more than 50 percent of the school milk purchased in Wisconsin and the UP.
4. Numerous school districts have benefitted from vigorous competition between Dean and Foremost. Dean and Foremost have frequently been the two lowest bidders for school milk contracts at numerous school districts in Wisconsin and the UP and, in some school districts, have been the only two bidders for those contracts.
5. Grocery stores, convenience stores, and other purchasers have also benefitted from vigorous competition between Dean and Foremost for fluid milk contracts. Dean and Foremost have been the only two bidders for some contracts and two of only three bidders for other contracts. The aggressive competition between them has lowered purchasers' costs. For example, in 2006, a retailer with hundreds of stores in northeastern Illinois held an auction for its fluid milk business in which the competition between Dean and Foremost saved the retailer approximately $1.5 million.
6. The Acquisition's elimination of head-to-head competition between Dean and Foremost will hurt school milk and fluid milk purchasers. The loss of this head-to-head competition leads directly
7. In the fluid milk market, the Acquisition is also likely to produce coordination among the remaining competitors. This coordination gives rise to what are referred to as anticompetitive “coordinated effects.” The fluid milk business in this region is already conducive to coordination among competitors. Notably, when deciding whether and how much to bid for an account, Dean and other dairy processors often consider the reactions of their competitors. Eliminating Foremost, which Dean describes as an “irrational” pricing competitor, will leave only a few remaining competitors, whose competitive decision-making Dean has described as “more predictable” and “rational.” Consequently, the Acquisition will make coordination easier and more durable.
8. As further described below, the Acquisition is likely to substantially lessen competition in the school milk and fluid milk markets at issue here in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. Entry is unlikely to restore competition in a timely or sufficient manner. To date, Dean has not integrated Foremost's plants into its operations in light of the pendency of the United States' investigation. The United States and Plaintiff States ask this Court to declare this Acquisition unlawful and require Dean to divest the acquired assets to restore competition in the markets at issue.
9. The United States brings this action under Section 15 of the Clayton Act, as amended, 15 U.S.C. 4 and 25. The Plaintiff States bring this action under Section 16 of the Clayton Act, 15 U.S.C. 26. Plaintiff State of Wisconsin brings this action under its authority in Wis. Stat. § 165.065.
10. Dean and the assets it obtained through the Acquisition produce dairy products for sale in interstate commerce. Accordingly, Dean and the Acquisition assets are engaged in activities affecting interstate commerce under Section 7 of the Clayton Act. The Court has subject matter jurisdiction over this action pursuant to Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, and 28 U.S.C. 1331, 1337(a) and 1345.
11. Dean is present in the State of Wisconsin, and it transacts substantial business and commerce in the State. Accordingly, Dean is subject to personal jurisdiction. Venue is also proper in this District pursuant to Section 12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(b)(1), (b)(2) & (c). The acquired dairy processing plant in Waukesha is located within the territory of the Milwaukee Division of this Court.
12. Dairy processors purchase raw milk from dairy farms and agricultural cooperatives, pasteurize and package the milk, and distribute and sell the processed product. Fluid milk is raw milk that has been processed for human consumption. It does not include extended shelf life milk, ultra high temperature milk or aseptic milk, which are produced by different processes, generally cost significantly more than fluid milk, and have numerous significant physical differences that, compared with fluid milk, affect shelf stability and taste.
13. Dairy processors supply fluid milk directly to retailers, distributors, broad-line food service companies, and institutions such as hospitals and nursing homes. The vast majority of fluid milk is sold directly by processors to retailers. The balance of sales is made to distributors, food service companies, and institutions. Distributors and food service companies resell the milk that they purchase from processors to small retailers, restaurants, and institutions. Retailers in Wisconsin, the UP, and northeastern Illinois do not resell fluid milk to other retailers or institutions in any substantial quantity. Retail demand for fluid milk is based directly on consumer demand.
14. Milk processors charge different prices to different purchasers for the same product based on a variety of factors, including the number of competitive alternatives available to the purchaser. Large retailers typically request bids from milk processors. Distributors, institutions, and small retailers generally purchase their milk from price lists that dairy processors issue. However, these customers sometimes obtain rebates, discounts, or other forms of price relief, so that two customers covered by the same price list may pay different prices. Bid prices are based on the processor's product, transportation, and service costs, the processor's capacity utilization, and the number and strength of processors likely to offer competing bids, among other factors.
15. Distance between processors and purchasers is an important consideration in fluid milk pricing because fluid milk has a limited shelf life and is costly to transport. These costs result in most customers purchasing fluid milk from nearby processing plants. For example, more than 90 percent of the milk sold to customers in Wisconsin and the UP traveled less than 150 miles from the plant in which it was processed.
16. School milk is fluid milk packaged and distributed for sale to school districts, typically in half-pint containers. Dean, Foremost, and other school milk suppliers often use distributors to supply and service school districts. Dairy processors generally use one distributor per service area. While school milk contracts occasionally include other products, school milk accounts for the vast majority of the dollar value of these contracts.
17. School milk delivery is not just a matter of dropping product off at the curb. Different school districts specify their individualized service requirements in contracts with processors. For example, some school districts require multiple deliveries per week because they have limited refrigerated storage space; some require guaranteed emergency deliveries. Most school districts require the capability to deliver to all of the schools in the district. Many require early morning or other specific delivery times to avoid conflicts with the arrival of schoolchildren and buses. Other services can include milk reordering, cooler supply, cooler restocking, cooler cleaning and maintenance, carton rotation, retrieval of spoiled and damaged product, and automatic allotment of credit for retrieved product.
18. The number of processors from which a school district can successfully solicit competitive bids is often very small. Given the limited volume of milk delivered to each school, the extensive and highly individualized service requirements, and the seasonal nature of school milk demand, among other considerations, it is almost always uneconomic for a dairy processor to supply a new contract unless the processor already has significant fluid milk distribution in or near the school district's area. Dairy processors that do not already distribute fluid milk locally can rarely bid competitively. This is particularly relevant in sparsely populated areas such as northern Wisconsin and the UP.
19. Individual school districts solicit bids for school milk, although groups of school districts will occasionally solicit bids collectively. However, even school districts involved in collective
20. Dean is one of the largest food and beverage producers in this country, with revenues of $12.5 billion in 2008. Dean's Dairy Group is the country's largest processor and distributor of milk and other dairy products. Dean is a corporation organized under Delaware state law, with its principal place of business in Dallas, Texas.
21. The Acquisition is the latest in a series of acquisitions by Dean of smaller dairy processors across the United States. Since 1996, Dean has made more than 100 acquisitions, which have added to Dean's market share and increased its size substantially.
22. Foremost is a dairy cooperative headquartered in Baraboo, Wisconsin, and formed under Wisconsin state law. Like other agricultural cooperatives, Foremost is a member-owned business association. Foremost is governed by a 21-member Board of dairy farmers. Prior to the Acquisition, Foremost processed its members' raw milk at its DePere and Waukesha plants, as well as at other facilities. The DePere and Waukesha plants were owned and operated by Foremost's Consumer Products Division. On or about April 1, 2009, Dean bought substantially all of the Consumer Products Division's assets for $35 million. The Acquisition was not required to be reported beforehand to Federal antitrust authorities under the Federal antitrust notification statute.
23. While Dean's fortunes have been rising, the same has not been true for Foremost. In 2006 and 2007, Foremost lost some fluid milk customers that preferred a processor with a broader geographic reach. Consequently, Foremost's Waukesha and DePere plants were operating at less than two-thirds of their fluid milk capacity, giving Foremost the most excess capacity in Wisconsin, the UP, and northeastern Illinois.
24. Excess capacity creates an incentive to bid more aggressively for fluid and school milk contracts. Because of its substantial excess capacity, Foremost was pricing aggressively to secure new business. Unlike Foremost, Dean did not have substantial excess capacity and so did not have the same economic incentives as Foremost. As a result of Foremost's aggressive pricing, Dean faced the choice of losing business or cutting its margins. Neither approach was attractive to Dean.
25. The problem that Foremost posed was not unique. Dean saw competitors such as Foremost and other local competitors with excess capacity as posing a serious problem for Dean's profitability. Dean's Chief Executive Officer, Gregg Engles, articulated the competitive issue facing Dean in a September 2008 speech to Dean's top executives:
26.
“Every one of you has an irrational local competitor story. * * * Why do we have irrational local competitors? Because we have too much capacity in this industry * * * these guys are losing share, * * * they have less volume in their plants, * * * so they default to the same game that gets played in industries that have little volume growth and too much capacity everywhere around the world. People play for share, and in this category, you play for share with price.”
27. Dean's own internal documents confirm that Dean viewed Foremost as one of those “irrational” local competitors because of Foremost's excess capacity, among other reasons. In 2008, as part of an effort to develop a strategic growth plan for its fluid milk business, Dean's corporate headquarters asked the group vice presidents in each region to prioritize their key competitive issues. The Vice President for the North Central region (which includes Wisconsin) identified his key concern as “Midwest excess capacity lies with cooperatives with staying power.” Cooperatives, such as Foremost, were competitive threats because their “earnings expectations [are] lower than Deans,” because the “co-op goal is to move Member milk,” and because “their plants are under utilized.”
28. The problem this created for Dean was obvious. Competition with these cooperatives was predicted to “lower margins and condition clients [to] the benefits of shopping their business.” Along with one other cooperative in the region, Foremost was identified as a particularly “dangerous” competitor because “they need to add volume to maintain their lo[w] cost strategy.” In other words, according to Dean, Foremost was more willing to accept lower prices for processed fluid and school milk than Dean found acceptable.
29. In 2007, the general manager at Dean's Verifine plant in Sheboygan, Wisconsin, reported to his boss that he was “seeing alot [sic] of off the wall pricing coming from [Foremost]” and that he was “worried about them coming at us again at [WalMart] not to mention the rest of the market.” In 2009, after receiving reports of very low Foremost prices in several grocery and convenience stores in the UP, the general manager of Dean's Marquette, Michigan, plant complained to his boss that “[t]his is the most aggressive pricing the UP has seen since probably the 60's. Our volume is off roughly 15 percent as the effects of this onslaught really kick in * * * I know you're with me on this, so how can we cease/desist and regain some sanity?”
30. As part of Dean's 2008 Strategic Growth Plan, Dean proposed future acquisitions, which included problematic local processors. Ed Fugger, Dean's acquisitions chief, highlighted that fragmentation “[d]rives margin compression,” and that a significant part of the fluid milk market “remains highly fragmented.” In handwritten notes he wrote in preparation for his speech to Dean's senior management, and later, Dean's Board of Directors, Fugger wrote that the “benefit of acquisition in these m[ar]k[e]ts is
31. The Strategic Growth Plan included “Potential Acquisition Targets” for each of Dean's regions. The targets for the North Central Region included Foremost, which Dean had identified as one of two “irrational competitors” that are “significantly short on volume.”
32. Dean eliminated the competitive threat posed by Foremost by acquiring its two milk processing plants. Any efficiencies Dean may realize from acquiring the two plants are not likely to reverse the anticompetitive impact of eliminating a competitor responsible for the “most aggressive pricing” Dean had seen in 40 years. There was an alternative to this outcome. At the time Foremost accepted Dean's offer to acquire these plants, another potential buyer was pursuing Foremost's plants.
33. School milk is a relevant product market and line of commerce under Section 7 of the Clayton Act. School districts have no reasonable product alternatives to school milk.
34. The United States Department of Agriculture sponsors several programs to reimburse schools for meals served to students from lower-income families. To qualify, schools must offer milk to every student, regardless of family income.
35. Each school district in Wisconsin and the UP constitutes a relevant geographic market or section of the country within the meaning of Section 7 of the Clayton Act. As alleged in paragraph 19, individual school districts solicit school milk contract bids from processors. In response, processors engage in “price discrimination,”
36. School districts in Wisconsin and the UP have only a few choices for school milk suppliers. There are numerous school districts, particularly in northeastern Wisconsin and the western UP, for which the Acquisition merged the two processors that were best situated to serve the district. In many cases, the Acquisition created a “merger to monopoly,” leaving Dean as the only likely bidder. These school districts include those where Dean and Foremost were the only two dairy processors to bid in recent years. The elimination of head-to-head competition between Dean and Foremost will likely substantially lessen competition in these school milk markets and enable Dean to raise prices and/or reduce services.
37. In addition, in a separate set of school districts, either Dean or Foremost was the only bidder and the other processor was the next-lowest-cost supplier because of factors such as distance from the processing plant or the presence of an established distribution network. It is likely that prices will rise and/or services will be reduced in these school milk markets, regardless of whether both Dean and Foremost submitted formal bids before the Acquisition. There is also a substantial number of school districts in Wisconsin and the UP for which Dean and Foremost were two of only three recent or likely future bidders. For these school districts, the Acquisition represents a “merger to duopoly.”
38. In addition, Foremost was an especially aggressive bidder. This forced its rivals to keep their bid prices as low as possible or risk losing substantial amounts of school milk business.
39. Fluid milk is a relevant product market and line of commerce under Section 7 of the Clayton Act. Fluid milk is a product with special nutritional characteristics and has no practical substitutes.
40. Consumer demand for fluid milk is relatively inelastic,
41. Fluid milk processors are able to charge different prices to buyers in different areas,
42. Wisconsin, the UP, and northeastern Illinois constitute a relevant geographic market and section of the country under Section 7 of the Clayton Act. As discussed in paragraph 15, most customers purchase fluid milk from suppliers with processing plants located near them because of the costs associated with transportation and shelf life. Prior to the Acquisition, Foremost sold virtually all of its fluid milk to purchasers located in the relevant geographic market. Dean competed to supply fluid milk to purchasers throughout this same area.
43. The Acquisition will result in a substantial increase in the concentration of processors that compete to supply fluid milk to purchasers located in the relevant geographic market. Some of these processors are located outside of Wisconsin, the UP, and northeastern Illinois. Prior to the Acquisition, Dean had the largest share of sales to purchasers within the relevant geographic market. Dean accounted for 44.6 percent of fluid milk sales; Foremost accounted for another 12.6 percent. As a result of the Acquisition, Dean now has more than 57 percent of all fluid milk sales in the relevant geographic market. There are only two other competitors with more than five percent of fluid milk sales in the relevant geographic market, Kemps LLC (a subsidiary of Hood LLC) (“Kemps”) and Prairie Farms Dairy, Inc., which have 17 and 15 percent, respectively. Moreover, Dean's post-Acquisition shares are even higher in certain areas within the relevant geographic market: over 85 percent in the UP and over 60 percent in Green Bay, Wisconsin, and in northeastern Illinois (including Chicago).
44. As articulated in the
45. The Acquisition will likely substantially lessen competition among fluid milk producers in the relevant geographic market, resulting in higher fluid milk prices to purchasers than would exist in the absence of the Acquisition. The Acquisition will eliminate head-to-head competition that has benefitted and would otherwise continue to benefit purchasers and final
46. Dean and Foremost often competed head-to-head to win fluid milk contracts because they were the nearest fluid milk processors to many of the purchasers in the relevant geographic market. As discussed in paragraph 15, proximity to the purchaser is an important factor in a processor's competitiveness. Prior to the Acquisition, Foremost competed with Dean throughout the relevant geographic market. The head-to-head competition between Dean and Foremost was most pronounced and pervasive in the UP and northeast and southeast Wisconsin, where the Dean and Foremost plants were the two closest plants to many fluid milk purchasers.
47. As discussed in paragraph 23, Foremost had substantial excess capacity, and as a result, was pricing aggressively to secure new business. The presence of Foremost as an aggressive pricing competitor to Dean and a constraining force on Dean's pricing is reflected in the internal Dean documents discussed in paragraphs 25 to 29. The elimination of this head-to-head competition likely will produce higher prices and/or reduced services for many purchasers in the relevant geographic market. These effects will vary among purchasers because, as discussed previously, different purchasers have different competitive options. Thus, the prices paid and services received will continue to differ among purchasers after the Acquisition, but for many purchasers the prices they pay and/or the services they receive will be adversely affected by the Acquisition.
48. By eliminating Foremost, a significant, disruptive, and aggressive competitor, the Acquisition also will likely substantially lessen competition among the remaining competitors selling fluid milk in the relevant geographic market by facilitating coordination among them. Dean and its few remaining competitors will be more likely to decline to bid aggressively for one another's established customers out of concern for retaliation, thereby allocating customers among one another based on a mutual recognition of what supplier serves what customers. This form of coordination is easier when there are fewer competitors and they can identify one another's customers. With the elimination of Foremost, purchasers in many areas of the relevant geographic market will have only two or three significant suppliers of fluid milk. For example, in Wisconsin, Dean and Kemps, its next-largest competitor, now account for more than 80 percent of sales.
49. Even before the Acquisition, Dean and other dairy processors besides Foremost were at times content not to attack one another's large accounts. In a recent bidding event, Dean refused to bid aggressively for a major supermarket chain that was Kemps's largest account, despite the purchaser's complaint to Dean that Dean's bid was too high. A Dean executive testified that stealing the account from Kemps would have put a Kemps plant “out of business or to its knees” and that “we're not going to do that right now. You pick your fights.” In contrast, Foremost was not content to pick its fights. When Foremost was bidding for the same large supermarket chain, it submitted a competitive bid, even though Foremost realized that the “cost” of winning that business could be high, due to the potential for retaliation. The general manager of Foremost's Morning Glory plant estimated that retaliation at five of his larger accounts could cost almost $500,000 per year.
50. Whereas Foremost was routinely labeled as an “irrational” competitor by Dean executives, the Group Vice President for Dean's North Central region labeled two other processors “good competitors” in his 2008 strategic growth planning document. By “good competitor,” Dean's Vice President admitted he meant that, unlike Foremost, these competitors were “more predictable” in terms of “where they're going to poke you in the eye and where they're not, whereas the other * * * fellows [are] poking all the time.” With this Acquisition, only the so-called “good competitors” will remain.
51. In at least one instance, Dean successfully sent price signals to its competitors. In 2008, Dean announced an upcoming fuel surcharge price increase, and one of its competitors followed suit. In reporting this to his boss, the Group Vice President for the region in which this occurred wrote, “[our competitor] followed us this week with a similar increase. The strategy paid off.” His boss then declared that it is a good practice “to signal your intentions early and often.” The Vice President for the North Central region, which includes Wisconsin, then instructed his staff to “get out early for July and signal the marketplace.”
52. By reducing the number of competitors serving the relevant geographic market and eliminating an aggressive competitor with large amounts of excess capacity, the Acquisition makes coordination easier and more durable.
53. Entry is unlikely to be sufficient or timely enough to offset the anticompetitive effects of the Acquisition. Firms currently serving the fluid milk and school milk markets in Wisconsin, the UP, and northeastern Illinois are unlikely to expand their service area or presence sufficiently to substantially mitigate the loss of Foremost's head-to-head competition with Dean in the fluid milk and school milk markets, or to disrupt coordinated interaction by Dean and its remaining competitors in the fluid milk market. Firms not currently serving these markets are unlikely to enter in the foreseeable future.
54. The United States and the Plaintiff States hereby incorporate the allegations of paragraphs 1 through 52 above.
55. The Acquisition likely will substantially lessen competition in interstate trade and commerce, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, in that:
a. Actual and potential competition between Foremost and Dean in the State of Wisconsin and the UP in the sale of school milk will be eliminated; and
b. competition in the State of Wisconsin and the UP in the sale of school milk will be substantially lessened.
56. The Acquisition likely will substantially lessen competition in interstate trade and commerce, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, in that:
a. Actual and potential competition between Foremost and Dean in the State of Wisconsin, the UP, and northeastern Illinois in the sale of fluid milk will be eliminated; and
b. competition in the State of Wisconsin, the UP, and northeastern Illinois in the sale of fluid milk will be substantially lessened.
57. The United States and the Plaintiff States request that this Honorable Court:
a. Adjudge and decree that the Acquisition violates Section 7 of the Clayton Act, 15 U.S.C. 18;
b. compel Dean to divest all of the assets and interests it acquired as part of the Acquisition;
c. permanently enjoin Dean from further ownership and operation of the assets acquired as part of the Acquisition;
d. compel Dean, including any of its subsidiaries, joint ventures, successors or assigns, and all persons acting on behalf of any of the foregoing, to provide the United States (and any Plaintiff State(s) if commerce in that state(s) is potentially affected) with notification at least 30 calendar days prior to any acquisition, in whole or in part, of any school milk or fluid milk processing operation, notwithstanding the consideration Dean intends to pay for such acquisition; and
e. award to each plaintiff its costs for this action and such other and further relief as may be appropriate and as the Court may deem just and proper.
Dated: January 22, 2010.
Respectfully submitted,
Dated: January 22, 2010.
Respectfully submitted,
Dated: January 22, 2010.
Respectfully submitted,
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
The United States filed a civil antitrust Complaint under Section 15 of the Clayton Act, 15 U.S.C. 25, on January 22, 2010, alleging that the acquisition by Dean Foods Company (“Dean”) of two fluid milk processing plants in Wisconsin from Foremost Farms USA (“Foremost”) violated Section 7 of the Clayton Act (“Section 7”), 15 U.S.C. 18. The Complaint alleges that Dean's acquisition of the Foremost plants (the “Acquisition”) likely would substantially lessen competition in two types of markets: (1) The sale of fluid milk to customers (
The United States and Dean have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Dean is one of the largest food and beverage producers in this country, with revenues of approximately $12 billion in 2010. Dean's Dairy Group is the country's largest processor and distributor of milk and other dairy products. Dean is a corporation organized under Delaware state law, with its principal place of business in Dallas, Texas.
Foremost is a dairy cooperative headquartered in Baraboo, Wisconsin, and formed under Wisconsin state law.
The Complaint alleges that fluid milk is a relevant product market. Fluid milk is a product with special nutritional characteristics and has no practical substitutes. Consumer demand for fluid milk is relatively inelastic,
The Complaint alleges that Wisconsin, northeastern Illinois, and the UP constitute a relevant geographic market for the sale of fluid milk. The Plaintiffs defined this geographic market with respect to the locations of the customers (
The price discrimination analysis underlying the geographic market definition set forth in the Complaint is thus consistent with the 2010 Horizontal Merger Guidelines, which explain that “[f]or price discrimination to be feasible, two conditions typically must be met: differential pricing and limited arbitrage.” U.S. Dept. of Justice & FTC, Horizontal Merger Guidelines § 3 (2010). More specifically, when suppliers can profitably charge different prices (net of costs) to different customers in different locations, competition does not occur at the point of production but
Applying this analysis, the evidence in this case satisfies the conditions necessary to show price discrimination. The evidence shows that fluid milk processors negotiate prices for delivery of fluid milk to individual customers in Wisconsin, northeastern Illinois, and the UP and that prices vary among the customers. The evidence also shows that customers cannot arbitrage because of significant loading and shipping costs incurred in reselling. Moreover, the customers lack the coolers necessary to act as arbitrageurs on a significant scale and could not arbitrage fluid milk labeled with their own trademarks to other customers. Thus, fluid milk customers in Wisconsin, northeastern Illinois and the UP are vulnerable to anticompetitive effects flowing from Dean's acquisition of the Foremost plants. As the Complaint alleges, prior to the Acquisition, Foremost sold virtually all of its fluid milk to customers located in these locations, and Dean competed to supply fluid milk to customers throughout this same area. Fluid milk customers located in Wisconsin, northeastern Illinois, and the UP would not defeat a price increase by a hypothetical monopolist of fluid milk by substituting to other products or by taking advantage of arbitrage.
The Complaint alleges that the Acquisition will likely substantially lessen competition in the sale of fluid milk in the relevant geographic market. Indicative of this are the effects of the Acquisition on market shares. In a geographic market defined on the basis of price discrimination, the participants in the relevant market are firms that currently supply customers in the market and firms that could economically begin doing so in the event of a small price increase. Market shares typically are assigned to these firms on the basis of their current (or projected) sales to customers within the geographic market, without regard to the location of the processing plant from which the product is supplied.
Based on current sales, as a result of the Acquisition, Dean increased its share of fluid milk sold to customers in the relevant geographic market from approximately 45 percent to more than 57 percent. There are only two other competitors with more than five percent of fluid milk sales in the relevant geographic market—Kemps LLC (a subsidiary of Hood LLC) accounts for approximately 17 percent of sales and Prairie Farms Dairy, Inc. accounts for approximately 15 percent of sales. The Acquisition will eliminate head-to-head competition that has benefitted, and would otherwise continue to benefit, customers and final consumers. The Acquisition will also likely facilitate easier and more durable coordinated interaction among Dean and its few remaining competitors.
Dean and Foremost often competed head-to-head to serve fluid milk customers. Prior to the Acquisition, Foremost competed with Dean throughout the relevant geographic market. Foremost had substantial excess capacity, and as a result, competed aggressively to secure new business. The presence of Foremost as an aggressive pricing competitor to Dean served as a constraining force on Dean's pricing. The elimination of this head-to-head competition likely will produce higher prices for many customers of fluid milk in the relevant geographic market. By eliminating Foremost, a significant, disruptive, and aggressive competitor, the Acquisition also will likely substantially lessen competition among the remaining competitors selling fluid milk in the relevant
The Complaint alleges that neither supply responses from market participants nor entry would likely prevent the anticompetitive effects of the Acquisition in the fluid milk market. Firms not currently serving these markets are unlikely to enter in response to a small, durable price increase. Firms currently selling fluid milk into the relevant geographic market are unlikely to expand their sales sufficiently to substantially mitigate the loss of Foremost's head-to-head competition with Dean or to disrupt potential coordination by Dean and its remaining competitors in the fluid milk market.
The Complaint alleges that school milk (
The Complaint alleges that each school district in Wisconsin and the UP constitutes a relevant geographic market. A hypothetical monopolist of school milk could identify and individually target vulnerable school districts in Wisconsin and the UP as school districts solicit school milk contract bids directly from processors. It would not be feasible for an individual school district to defeat a price increase by substituting to other products or by engaging in arbitrage (
The Complaint alleges that the Acquisition will likely substantially lessen competition in the sale of school milk to school districts located in Wisconsin and the UP. School districts in Wisconsin and the UP have only a few choices for school milk suppliers. Prior to the Acquisition, Dean and Foremost were the two processors best situated to serve certain districts in Wisconsin and the UP. In many districts, the Acquisition created a “merger to monopoly,” leaving Dean as the only likely bidder. These school districts include those where Dean and Foremost were the only two dairy processors to bid in recent years. There are also a substantial number of school districts in Wisconsin and the UP for which Dean and Foremost were two of only three recent or likely future bidders. For these school districts, the Acquisition represents a “merger to duopoly.” The elimination of head-to-head competition between Dean and Foremost will likely substantially lessen competition in these school milk markets and enable Dean to raise prices and/or reduce services.
The Complaint alleges that entry into school milk markets is not likely to prevent the anticompetitive effects of the Acquisition. Firms not currently serving school districts in Wisconsin and the UP are unlikely to begin to do so in the foreseeable future.
The proposed Final Judgment requires Dean, within 90 days after the filing of the proposed Final Judgment, or 5 days after entry of the Final Judgment by the Court, whichever is later, to divest the Waukesha plant it acquired from Foremost. The divestiture required by the proposed Final Judgment will establish an independent and economically viable competitor to Dean.
The proposed Final Judgment is in the public interest because the divestiture of the Waukesha plant will enable the buyer to compete for business in an area that includes the vast majority of the population in the relevant geographic market. Of the De Pere and Waukesha plants acquired by Dean through the Acquisition, the Waukesha plant currently produces more milk, has a larger capacity to process milk, and is located closer to major population centers, including Chicago, Green Bay, and Milwaukee. Distance between processors and customers is an important consideration in fluid milk pricing because fluid milk has a limited shelf life and is costly to transport. These costs result in most customers purchasing fluid milk from nearby processing plants. For example, more than 90 percent of the milk sold to customers in Wisconsin and the UP travels less than 150 miles from the plant in which it was processed. Ninety-two percent of the population of the relevant fluid milk geographic market is located within 150 miles of the Waukesha plant, and 80% of public school children in Wisconsin and the UP are enrolled in school districts within 150 miles of the Waukesha plant.
In addition, the Waukesha plant has significant excess capacity. This excess
The proposed Final Judgment requires Dean to divest all tangible assets that comprise the Waukesha plant business and all intangible assets used in the development, production, servicing, and sale of fluid milk and other dairy products for the Waukesha plant. These assets will give the acquirer a distribution network, an established customer base, and a brand (Golden Guernsey) with strong brand equity. The assets must be divested in such a way as to satisfy the United States in its sole discretion that the divested assets can and will be operated by the purchaser as a viable, ongoing business that can compete effectively in the relevant market. Dean must take all reasonable steps necessary to accomplish the divestiture quickly and shall cooperate with prospective purchasers.
In the event that Dean does not accomplish the divestiture within the period prescribed in the proposed Final Judgment, the proposed Final Judgment provides that the Court will appoint a trustee selected by the United States to effect the divestiture. If a trustee is appointed, the proposed Final Judgment provides that Dean will pay all costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture. At the end of six months, if the divestiture has not been accomplished, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, in order to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment.
In addition to the divestiture of the Waukesha plant, the proposed Final Judgment requires Dean to provide advance notification of certain future acquisitions of fluid milk processing plants to the Antitrust Division. The notification provision of the proposed Final Judgment is intended to avoid the difficulties associated with remedying the harms of a consummated anticompetitive acquisition by permitting the United States to assess the competitive effects of Dean's future acquisitions before the acquisitions are consummated, and if necessary, to seek to enjoin any transaction pursuant to Section 7.
The proposed Final Judgment provides that Dean shall not directly or indirectly acquire any assets of or interest in any fluid milk processing plant located in the United States, where the value of the acquisition is $3 million or greater, without prior notification to the United States. Transactions otherwise subject to the reporting and waiting period requirements of the HSR Act are excepted from the notification provision of the proposed Final Judgment. This provision will significantly broaden Dean's pre-merger reporting requirements because the $3 million amount is significantly less than the HSR Act's “size of the transaction” reporting threshold.
The proposed Final Judgment requires that such notification shall be provided to the Antitrust Division in the same format as, and in accordance with the instructions relating to the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 9 of the instructions must be provided only about fluid and school milk processing. Notification shall be provided at least 30 calendar days prior to acquiring any such interest. If within the 30-day period after notification, representatives of the Antitrust Division make a written request for additional information, Dean shall not consummate the proposed transaction or agreement until 30 calendar days after responding consistent with 15 U.S.C. 18a(e)(2). Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted in the same manner as is applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in Federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Dean.
The United States and Dean have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least 60 days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within 60 days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to:
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered various proposals for settlement offered by Dean that would have provided less relief than is contained in the proposed Final Judgment. Those proposals involved the divestiture of a single dairy with less capacity and a smaller service area than the Waukesha dairy. The United States determined that the divestiture of the Waukesha dairy was far superior given its location, size, and excess capacity.
The United States also considered, as an alternative to the proposed Final Judgment, incurring the time, expense, and risk of a full trial on the merits in
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a 60-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)(1). In making that determination, the court, in accordance with the statute as amended in 2004, 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 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.
[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 “
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.'”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
James L. Santelle,
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states claims upon which relief may be granted against Defendant under Section 7 of the Clayton Act, as amended (15 U.S.C. 18).
As used in this Final Judgment:
(A) “Acquirer” means the person or entity to whom Defendant divests the Divestiture Assets.
(B) “Dean Foods” means Defendant Dean Foods Company, a Delaware corporation with its headquarters in Dallas, Texas, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
(C) “Divestiture Assets” means the Waukesha Plant, as defined below, and all related assets for the Waukesha Plant (except for those specified in Section II(C)(3) below), including:
(1) All tangible assets that comprise the Waukesha Plant business, including all property and contract rights, research and development activities; all manufacturing equipment, tooling and fixed assets, personal property, inventory, office furniture, materials, supplies, vehicles and other rolling stock, and other tangible property and all assets used in connection with the plant; all licenses, permits and authorizations issued by any governmental organization relating to the plant; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings, relating to the plant, including agreements with suppliers and with distributors; all customer lists and related customer information, contracts, accounts (including accounts receivable), and credit records; and all repair and performance records and all other records relating to the plant; and
(2) All intangible assets used in the development, production, servicing, and sale of Fluid Milk and other dairy products for the Waukesha Plant, including, but not limited to, all patents, licenses and sublicenses, copyrights, trademarks, trade names (including the Golden Guernsey and La Vaca Bonita brands and all related materials), service marks, service names, and other intellectual property; technical information, computer software and related documentation; know-how and recipes; trade secrets; drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, safety procedures for the handling of materials and substances; quality assurance and control procedures; design tools and simulation capability; all manuals and technical information Defendant provides to its own employees, customers, suppliers, agents, or licensees; and all research data concerning historic and current research and development efforts relating to the Divestiture Assets, including, but not limited to, designs of experiments, and the results of successful and unsuccessful designs and experiments.
(3) The term “Divestiture Assets” does not include: (a) The right to purchase raw milk from Foremost Farms USA Cooperative for processing at the Waukesha Plant obtained under the Milk Supply Agreement entered into on April 1, 2009 between Foremost Farms
(D) “Fluid Milk” means raw milk that has been processed for human consumption as a beverage, but does not include organic milk, soy milk, extended shelf life milk, ultra-high temperature milk, or aseptic milk.
(E) “Plaintiff States” means the States of Wisconsin, Illinois, and Michigan.
(F) “School Milk” means Fluid Milk produced, marketed, distributed, or sold for use by schools.
(G) “Waukesha Plant” means Defendant's dairy processing plant located at 2101 Delafield Street, Waukesha, Wisconsin 53188-2299.
(A) This Final Judgment applies to Dean Foods, as defined above, and all other persons in active concert or participation with Dean Foods who receive actual notice of this Final Judgment by personal service or otherwise.
(B) If, prior to complying with Section IV or V of this Final Judgment, Defendant sells or otherwise disposes of all or substantially all of its assets or of lesser business units that include the Divestiture Assets, it shall require the purchaser to be bound by the provisions of this Final Judgment. Defendant does not need to obtain such an agreement from the Acquirer of the assets divested pursuant to this Final Judgment.
(A) Defendant is ordered and directed, within ninety (90) calendar days after the filing of the Proposed Final Judgment or five (5) calendar days after entry of this Final Judgment by the Court, whichever is later, to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States in its sole discretion, after consultation with the Plaintiff States. The United States in its sole discretion, after consultation with the Plaintiff States, may agree to one or more extensions of this time period not to exceed thirty (30) calendar days in total, and shall notify the Court in such circumstances. Defendant agrees to use its best efforts to divest the Divestiture Assets as expeditiously as possible.
(B) In accomplishing the divestiture ordered by this Final Judgment, Defendant promptly shall make known, by usual and customary means, the availability of the Divestiture Assets. Defendant shall inform any person making inquiry regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendant shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privilege or work-product doctrine. Defendant shall make available such information to Plaintiffs at the same time that such information is made available to any other person.
(C) Defendant shall provide the Acquirer and Plaintiffs with information relating to the personnel involved in the operation and sale of the Divestiture Assets to enable the Acquirer to make offers of employment. Defendant will not interfere with any negotiations by the Acquirer to employ any Defendant employee whose primary responsibility relates to the Divestiture Assets.
(D) Defendant shall permit prospective Acquirers of the Divestiture Assets to have reasonable (1) access to personnel and to make inspections of the physical facilities of the Waukesha Plant; (2) access to any and all environmental, zoning, and other permit documents and information; and (3) access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
(E) Defendant shall warrant to the Acquirer that the Divestiture Assets will be operational on the date of sale.
(F) Defendant shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.
(G) Defendant shall warrant to the Acquirer that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of each asset, and that following the sale of the Divestiture Assets, Defendant will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
(H) Unless the United States in its sole discretion, after consultation with the Plaintiff States, otherwise consents in writing, the divestiture pursuant to Section IV, or by trustee appointed pursuant to Section V of this Final Judgment, shall include the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States in its sole discretion, after consultation with the Plaintiff States, that the Divestiture Assets can and will be used by the Acquirer as part of viable, ongoing Fluid Milk and School Milk processing businesses. The divestitures, whether pursuant to Section IV or Section V of this Final Judgment:
(1) Shall be made to an Acquirer that, in the sole judgment of the United States, after consultation with the Plaintiff States, has the intent and capability (including the necessary managerial, operational, technical, and financial capability) of competing effectively in the sale of Fluid Milk and School Milk; and
(2) shall be accomplished so as to satisfy the United States in its sole discretion, after consultation with the Plaintiff States, that none of the terms of any agreement between an Acquirer and Defendant give Defendant the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively.
(A) If Defendant has not divested the Divestiture Assets within the time period specified in Section IV(A), Defendant shall notify Plaintiffs of that fact in writing. Upon application of the United States in its sole discretion, after consultation with the Plaintiff States, the Court shall appoint a trustee selected by the United States, after consultation with the Plaintiff States, and approved by the Court to effect the divestiture of the Divestiture Assets.
(B) After the appointment of a trustee becomes effective, only the trustee shall have the right to sell the Divestiture Assets. The trustee shall have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States in its sole discretion, after consultation with the Plaintiff States, at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the cost and expense of Defendant any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the divestiture.
(C) Defendant shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by Defendant must be conveyed in writing to Plaintiffs and the trustee within ten (10) calendar days
(D) The trustee shall serve at the cost and expense of Defendant, on such terms and conditions as the United States in its sole discretion, after consultation with the Plaintiff States, approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to Defendant and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
(E) Defendant shall use its best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and Defendant shall develop financial and other information relevant to such business as the trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information. Defendant shall take no action to interfere with or to impede the trustee's accomplishment of the divestiture.
(F) After its appointment, the trustee shall file monthly reports with Plaintiffs and the Court setting forth the trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest the Divestiture Assets.
(G) If the trustee has not accomplished the divestiture ordered under this Final Judgment within six (6) months after its appointment, the trustee shall promptly file with the Court a report setting forth (1) the trustee's efforts to accomplish the required divestiture, (2) the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and (3) the trustee's recommendations. To the extent the report contains information that the trustee deems confidential, the report shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to Plaintiffs, which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's appointment by a period requested by the United States in its sole discretion, after consultation with the Plaintiff States.
(A) Within two (2) business days following execution of a definitive divestiture agreement, Defendant or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify Plaintiffs of any proposed divestiture required by Section IV or V of this Final Judgment. If the trustee is responsible, it shall similarly notify Defendant. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
(B) Within fifteen (15) calendar days of receipt by Plaintiffs of such notice, the United States, after consultation with the Plaintiff States, may request from Defendant, the proposed Acquirer, any other third party, or the trustee, if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer. Defendant and the trustee shall furnish to the United States, which will share that information with the Plaintiff States upon any Plaintiff State's request, any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
(C) Within thirty (30) calendar days after receipt of the notice or within twenty (20) calendar days after the United States has been provided the additional information requested from Defendant, the proposed Acquirer, any third party, and the trustee, whichever is later, the United States in its sole discretion, after consultation with the Plaintiff States, shall provide written notice to Defendant and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to Defendant's limited right to object to the sale under Section V(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon objection by Defendant under Section V(C), a divestiture proposed under Section V shall not be consummated unless approved by the Court.
Defendant shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment.
Until the divestiture required by this Final Judgment has been accomplished, Defendant shall take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by this Court. Defendant shall take no action that would jeopardize the divestiture ordered by this Court.
(A) Within twenty (20) calendar days of the filing of the Proposed Final Judgment in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or V, Defendant shall deliver to Plaintiffs an affidavit as to the fact and manner of its compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts Defendant has taken to solicit buyers for the Divestiture Assets and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Provided that
(B) Defendant shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
(A) For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendant, be permitted:
(1) Access during Defendant's office hours to inspect and copy, or at the option of the United States, to require Defendant to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendant, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Defendant's officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendant.
(B) Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendant shall submit written reports or responses to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
(C) If at the time information or documents are furnished by Defendant to the United States, Defendant represents and identifies in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendant marks each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give Defendant ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
(D) The United States may share information or documents obtained under Section X with the Plaintiff States.
No information or documents obtained by the means provided in this Final Judgment shall be divulged by the United States or the Attorney General of Wisconsin, Illinois, or Michigan to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States or the Attorney General of Wisconsin, Illinois, or Michigan is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
Unless such transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”), Defendant, without providing advance notification to the Antitrust Division and to any Plaintiff State in which any of the assets or interests are located or whose border is less than 150 miles from any such assets or interests, shall not directly or indirectly acquire any assets of or interest, including any financial, security, loan, equity or management interest, in any Fluid Milk processing plant located in the United States, where the value of the acquisition is $3 million or greater.
Such notification shall be provided to the Antitrust Division in the same format as, and per the instructions relating to the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended, except that the information requested in Items 5 through 9 of the instructions must be provided only about Fluid Milk and School Milk processing. Notification shall be provided at least thirty (30) calendar days prior to acquiring any such interest. Within the 30-day period after notification, representatives of the Antitrust Division may make a written request for additional information or documentary material relevant to the proposed acquisition as though 15 U.S.C. 18a(e) were applicable (“Second Request”). In the event of a Second Request, Defendant shall not consummate the proposed transaction or agreement until thirty (30) calendar days after responding consistent with 15 U.S.C. 18a(e)(2). Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted in the same manner as is applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder.
All references to the HSR Act in the proposed Final Judgment refer to the HSR Act as it exists at the time of the transaction or agreement and incorporate any subsequent amendments to the Act.
Defendant shall not reacquire any part of the Divestiture Assets during the term of this Final Judgment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years from the date of its entry.
The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States's responses to those comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. 16.
Notice is hereby given that, on March 3, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IMS Global Learning Consortium, Inc. intends to file additional written notifications disclosing all changes in membership.
On April 7, 2000, IMS Global Learning Consortium, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 16, 2010. A notice was published in the
Notice.
The Department of Labor (DOL) is submitting the revised Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “National Longitudinal Survey of Youth 1997,” (NLSY97) to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35).
Submit comments on or before May 5, 2011.
A copy of this ICR, with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, Bureau of Labor Statistics (BLS), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers),
Contact Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by e-mail at
The NLSY97 includes respondents born in the years 1980 through 1984 and lived in the United States when the survey began in 1997. The primary objective of the survey is to study the transition from full-time schooling to the establishment of careers and families. The longitudinal focus of the survey requires information to be collected about the same individuals over many years in order to trace their education, training, work experience, fertility, income, and program participation. Research based on the NLSY97 contributes to the formation of national policy in the areas of education, training, employment programs, and school-to-work transitions.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB control number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• 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 submission of responses.
Employment and Training Administration, Labor.
Notice.
The Department of Labor (DOL), 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 addition of seven new questions to the National Agricultural Workers Survey (NAWS) regarding: (1) The amount of time per day farm workers are engaged working in specific crops and tasks, and (2) farm workers' clothes laundering and hygiene practices. The information obtained from these questions will improve the Environmental Protection Agency, Office of Pesticide Programs' (EPA/OPP) ability to assess farm workers' risk to pesticide exposure. There are no known national-level studies that assess the length of the work day for specific crop-task combinations. The Office of Management and Budget (OMB) authorization for the current NAWS questionnaire will expire on October 31, 2013.
A copy of the proposed information collection request 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
Submit written comments to Mr. Daniel Carroll, Division of Research and Evaluations, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
The NAWS is an employment-based, annual survey of the demographic, employment, and health characteristics of hired crop farm workers, including workers brought to farms by labor intermediaries. Each year, approximately 1,500 workers are randomly chosen for an interview. Interviews are conducted three times per year to account for the seasonality of agricultural production and employment. Several Federal agencies utilize the NAWS to collect information on the population of hired crop farm workers. EPA, which has responsibility for assessing exposure to pesticides, is one such agency. These added questions will provide information that will improve EPA's ability to assess farm workers' risk of pesticide exposure.
The questions would be piloted in one interview cycle in Fiscal Year 2011 and, depending on the quality of information obtained, would be administered in all three interview cycles of Fiscal Years 2012 and 2013. The questions would be administered to each farm worker who is randomly selected for an interview.
DOL 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 appropriated 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 OMB approval of the information collection request; they will also become a matter of public record.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of MACOSH Membership and Meeting Announcement
In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C., App. 2), and after consultation with the General Services Administration, the Secretary of Labor announced on January 10, 2011, her intention to reestablish the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) as being in the public interest (76 FR 1460). She signed the MACOSH charter on January 25, 2011, which, pursuant to FACA, will expire after two years on January 25,
The first meeting of the reestablished MACOSH Committee will be held on April 19 and 20, 2011, in Washington, DC.
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Written statements and requests to speak, including personal information provided, will be placed in the public docket and may be available online. Therefore, OSHA cautions interested parties about submitting personal information such as social security numbers and birthdates.
The maritime industry has historically experienced a high incidence of work-related fatalities, injuries, and illnesses. OSHA has targeted this industry for special attention due to that experience. This targeting has included development of guidance or outreach materials specific to the industry, rulemakings to update requirements, and other activities. MACOSH will advise the Secretary through the Assistant Secretary of Labor for Occupational Safety and Health on matters relevant to the safety and health of employees in the maritime industry. The Committee's advice will result in more effective enforcement, training and outreach programs, and streamlined regulatory efforts. The Committee will function solely as an advisory body, in compliance with the provisions of FACA and OSHA's regulations covering advisory committees (29 CFR Part 1912).
OSHA received nominations of highly qualified individuals in response to the Agency's request for nominations (75 FR 13785, March 23, 2010). The Secretary has selected to serve on the Committee the following individuals who have broad experience relevant to the issues to be examined by the Committee. The MACOSH members are:
All MACOSH meetings and workgroup meetings are open to the public. All interested persons are invited to attend the MACOSH full-committee and workgroup meetings at the times and places listed above. The
Interested parties may also submit written statements, including data and other information, using any one of the methods listed in the
David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by Sections 6(b)(1) and 7(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655, 656), the Federal Advisory Committee Act (5 U.S.C. App. 2), Secretary of Labor's Order 4-2010 (75 FR 55355), and 29 CFR part 1912.
National Aeronautics and Space Administration.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the Exploration Committee of the NASA Advisory Council.
Tuesday, April 26, 2011, 1 p.m.-6 p.m., Local Time
NASA Headquarters, 300 E Street, SW., Room 7S40, Washington, DC 20546
Dr. Bette Siegel, Exploration Systems Mission Directorate, National Aeronautics and Space Administration Headquarters, 300 E Street SW., Washington, DC 20546, 202/358-2245;
The agenda topics for the meeting will include:
The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will need to show a picture identification such as driver's license to enter the NASA Headquarters building (West Lobby—Visitor Control Center), and must state they are attending the NASA Advisory Council Exploration Committee meeting in Room 7S40. Further,
For questions, please call Shawanda Robinson at (202) 358-1566.
National Aeronautics and Space Administration.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting for the Information Technology Infrastructure Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC.
Tuesday, April 26, 2011, 8:30 a.m.-5:30 p.m., Local Time. Meet-Me-Number: 1-877-613-3958; #2939943.
NASA Goddard Space Flight Center, 8800 Greenbelt Road, Building 12, Room C100D, Greenbelt, MD 20771.
Ms. Tereda J. Frazier, Executive Secretary for the Information Technology Infrastructure Committee, National Aeronautics and Space Administration Headquarters, Washington, DC 20546, (202) 358-2595.
The topics of discussion for the meeting are the following:
• Computing Environment—Diverse Needs and Solutions
• Network Environment and Mission Network Support
• IT Security Risk Management
• Ethics Briefing
• IT Committee Work Plan Actions/Assignments/Logistics
The meeting will be open to the public up to the seating capacity of the room. It is imperative that these meetings be held on this date to accommodate the scheduling priorities of the key participants. Visitors will need to show a valid picture identification such as a driver's license to enter the NASA Goddard Space Flight Center and must state that they are attending the NASA Advisory Council Information Technology Infrastructure Committee meeting in
All meetings are held at 2:30 p.m.
Board Agenda Room, No. 11820, 1099 14th St., NW., Washington DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition * * * of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.”
April 1, 2011.
Lester A. Heltzer, Executive Secretary, (202) 273-1067.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from March 10, 2011, to March 23, 2011. The last biweekly notice was published on March 22, 2011 (76 FR 16004).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rules, Announcements and Directives Branch (RADB), TWB-05-B01M, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852,
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Non-timely filings will not be entertained absent a determination by the presiding officer that the petition or request should be granted or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change allows the Configuration Risk Management Program (CRMP) to be applied to Technical Specification (TS) 3.7.7, “Control Room Makeup and Cleanup Filtration Systems” for the condition where one train of CRHVAC [Control Room Makeup and Cleanup Filtration System] is inoperable only due to the unavailability of cooling. The proposed change extends the AOT [allowed outage time] from 72 hours to 7 days for the condition where two trains of CRHVAC are inoperable only due to the unavailability of cooling. The CRMP cannot be applied to the loss of two trains of cooling.
The change does not involve a significant increase in the probability of an accident previously evaluated because the change does not involve a change to the plant or its modes of operation. In addition, the risk-informed configuration management program will be applied to effectively manage the availability of required structures, systems, and components to assure there is no significant increase in the probability of an accident.
This proposed change does not increase the consequences of an accident because the design-basis mitigation function of the affected systems is not changed and the risk-informed configuration management program will be applied to effectively manage the availability of structures, systems, and components required to mitigate the consequences of an accident.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change allows the Configuration Risk Management Program (CRMP) to be applied to Technical Specification (TS) 3.7.7, “Control Room Makeup and Cleanup Filtration Systems” for the condition where one train of CRHVAC is inoperable only due to the unavailability of cooling. The proposed change extends the AOT from 72 hours to 7 days for the condition where two trains of CRHVAC are inoperable only due to the unavailability of cooling. The CRMP cannot be applied to the loss of two trains of cooling.
The proposed change will not alter the plant configuration (no new or different type of equipment will be installed) or require any unusual operator actions. The proposed change will not alter the way any structure, system, or component functions, and will not significantly alter the manner in which the plant is operated. The response of the plant and the operators following an accident will not be different. In addition, the proposed change does not introduce any new failure modes.
Therefore, the proposed change does not create the possibility of a new or different
3. Does the proposed change involve a significant reduction to a margin of safety?
The proposed change allows the Configuration Risk Management Program (CRMP) to be applied to Technical Specification (TS) 3.7.7, “Control Room Makeup and Cleanup Filtration Systems” for the condition where one train of CRHVAC is inoperable only due to the unavailability of cooling. The proposed change extends the AOT from 72 hours to 7 days for the condition where two trains of CRHVAC are inoperable only due to the unavailability of cooling. The CRMP cannot be applied to the loss of two trains of cooling.
The CRMP implements a risk-informed configuration risk management program in a manner to assure that adequate margins of safety are maintained. Application of the configuration risk management program to TS 3.7.7 complements the risk assessment required by the Maintenance Rule and effectively manages the risk for limiting condition for operation when the Control Room Makeup and Cleanup Filtration Systems are inoperable.
The condition where two trains of CRHVAC are inoperable only due to unavailability of cooling is analogous to the condition where one train of CRHVAC is inoperable due to an adverse impact on the dose mitigation capability. The condition does not make the design basis accident any more probable. The safety function can still be achieved assuming no single failure during the AOT should a low probability DBA [design-basis accident] occur. Therefore, the extension of the AOT for the loss of two cooling trains to the same AOT as that for the loss of one train impacting the dose mitigation function does not significantly reduce the margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
STP Nuclear Operating Company has also requested an exemption from the provisions of 10 CFR 50.46, “Acceptance criteria for emergency core cooling systems for light-water nuclear power reactors,” and Appendix K to 10 CFR Part 50, “ECCS Evaluation Models,” to allow fuel rods with Optimized ZIRLO
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed Technical Specification change is to add Optimized ZIRLO
Westinghouse topical report WCAP-12610-P-A & CENPD-404-P-A, Addendum 1-A “Optimized ZIRLO
The NRC allows Optimized ZIRLO
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Optimized ZIRLO
3. Does the proposed change involve a significant reduction in a margin of safety?
The cladding material used in the fuel rods is designed and tested to prevent excessive fuel temperatures, excessive internal rod gas pressure due to fission gas releases, and excessive cladding stresses and strains. Optimized ZIRLO
The change in material does not significantly reduce margin required to preclude or reduce the effects of an accident or malfunction previously evaluated in the UFSAR.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the standards of
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 22, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 21, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 18, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 23, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 10, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated March 16, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 21, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 14, 2011.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated March 22, 2011.
No significant hazards consideration comments received: No.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of opportunity for public comment.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to issue a regulatory issue summary (RIS) to re-affirm its existing interpretation of the regulatory policy regarding the scope and corresponding dollar amount of the long-term surveillance charge (LTSC) to be paid to the general treasury of the United States, or to an appropriate State agency. This LTSC is paid prior to the transfer of title to a uranium mill, covered by Title II of the Uranium Mill Tailings Radiation Control Act (UMTRCA) of 1978 (UMTRCA Title II site), to the long-term custodian for long-term care and license termination. This
Comment period expires May 5, 2011. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
You may submit comments by any one of the following methods. Please include Docket ID NRC-2011-0073 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC website and on the Federal rulemaking website Regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this notice using the following methods:
NRC's Public Document Room (PDR): The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at
Mr. Roman A. Przygodzki at 301-415-5143 or by e-mail at
All holders of operating licenses for conventional or heap leach uranium recovery facilities, all holders of licenses for conventional or heap leach uranium recovery facilities in
NRC is issuing this RIS to reiterate its policy regarding the Long-Term Surveillance Charge (LTSC) for the applicable uranium recovery facilities. This RIS, among other things, discusses NRC's existing policy regarding the scope and corresponding dollar amount of the LTSC to be paid to the General Treasury of the United States, or to an appropriate State agency, prior to the transfer of title to the long-term custodian for long-term care and license termination. No specific action or written response is required.
Both conventional and heap leach uranium milling processes generate mill tailings, which are primarily a sandy waste material containing the radioactive decay products from the uranium chains (mainly the Uranium-238 chain) and heavy metals. During operations, the tailings are deposited in a tailings impoundment or disposal cell. The goal of the tailings impoundment or disposal cell is to provide long-term protection of human health and safety, to protect the environment, and to isolate the tailings without ongoing maintenance. Specifically, Criterion 1 to Appendix A of Title 10 of the
The general goal or broad objective in siting and design decisions is permanent isolation of tailings and associated contaminants by minimizing disturbance and dispersion by natural forces, and to do so without ongoing maintenance.
Criterion 6 to Appendix A of 10 CFR Part 40 states that licensees are required to place a cover over the tailings or wastes “…which provides reasonable assurance of control of radiological hazards…for 1,000 years, to the extent reasonably achievable, and, in any case, for at least 200 years.”
Prior to license termination, a Long-Term Surveillance Plan (LTSP) is submitted to NRC for review. According to 10 CFR 40.28(b)(2) and 10 CFR 40.28(b)(3), cited below, groundwater monitoring must be considered in the LTSP, if required:
(b)(2) A detailed description, which can be in the form of a reference of the final disposal site conditions, including existing ground water characterization. This description must be detailed enough so that future inspectors will have a baseline to determine changes to the site and when these changes are serious enough to require maintenance or repairs.
(b)(3) A description of the long-term surveillance program, including proposed inspection frequency and reporting to the Commission (as specified in appendix A, Criterion 12 of this part),
Additionally, prior to license termination, all operators of uranium mills are required to pay an appropriate LTSC to the General Treasury of the United States, or the appropriate State agency, as stated in the following excerpt from Criterion 10 to Appendix A of 10 CFR Part 40:
A minimum charge of $250,000 (1978 dollars) to cover the costs of long-term surveillance must be paid by each mill operator to the general treasury of the United States or to an appropriate State agency prior to the termination of a uranium or thorium mill license.
The LTSC is a one-time charge, in an amount such that an assumed 1 percent annual real interest rate would provide interest income sufficient to cover the annual costs of site surveillance incurred by the long-term custodian. Specifically, the intent of the minimum LTSC is to cover costs of a “passive monitoring” approach to site surveillance, whose assumptions are described in NUREG-0706, Vol. I, “Final Generic Environmental Impact Statement of Uranium Milling Project M-25,” dated September 1980 (Agencywide Documents Access and Management System [ADAMS] accession number ML032751663); Appendix R, “Costs of Post-Operational Site Surveillance” of NUREG-0706, Vol. III, “Final Generic Environmental Impact Statement of Uranium Milling Project M-25—Appendices G-V,” dated September 1980 (ADAMS accession number ML032751669); and “[NRC] Staff Guidance on the License Termination Process for Conventional Uranium Mill Licensees,” dated November 27, 1996 (ADAMS accession number ML100840671).
Recently, the U.S. Department of Energy (DOE) raised an issue to the NRC regarding the minimum LTSC amount paid. Specifically, DOE inquired as to what long-term care activities would merit an increase in the LTSC above the minimum amount. DOE stated that, based on actual costs of site surveillance and control activities, the minimum amount paid as the LTSC may not be sufficient to cover the costs for the needed site surveillance and control activities, in certain cases. For instance, sites with alternate concentration limits (ACLs) may require increased groundwater monitoring not covered by the “passive monitoring” approach assumed in the development of the minimum LTSC.
In a letter dated June 17, 2010, NRC responded to DOE's query with regard to what long-term care activities would merit an increase in the LTSC (ADAMS accession number ML100670337). It is the intent of this RIS to further clarify the matters discussed in that letter, as well as state NRC's intent with regard to the review of proposed LTSCs and financial assurance.
Pursuant to Criterion 10 to Appendix A of 10 CFR 40, an escalation in the LTSC from the minimum charge amount is within NRC's regulatory authority:
If site surveillance or control requirements at a particular site are determined, on the basis of a site-specific evaluation, to be significantly greater than those specified in Criterion 12…
The NRC's position on the LTSC—described in “[NRC] Staff Guidance on the License Termination Process for Conventional Uranium Mill Licensees,” (ADAMS accession number ML100840671)—is well established and goes back over 13 years. Escalation of the LTSC is consistent with NRC's historical practice. The LTSC of the Atlantic Richfield Company's (ARCO's) Bluewater Uranium Mill and Tailings site was escalated for sampling of groundwater (ML103410026). At the Sohio Western Mining Company's L-Bar uranium mill tailings site, the LTSC was escalated for the maintenance required to address of future accumulation of sedimentation in the diversion channels (ADAMS accession numbers ML042580467 and ML042580457).
Provided that there is a nexus to radiological health and safety, the NRC may consider escalating the LTSC above the minimum amount, adjusted to current year dollars. The increased LTSC would address long-term maintenance and control activities if site surveillance or control requirements are expected to be greater than those specified in Criterion 12 to Appendix A of 10 CFR 40 to cover such measures relied on for the performance of the tailings impoundment. The NRC may consider escalating the LTSC for long-term maintenance and control activities undertaken to ensure maintenance of radiological health and safety such as,
Consistent with past practice, on a site-specific basis, NRC staff will continue to work with the custodial agency and the licensee to address the LTSC, with any final variances in the funding requirements to be determined solely by the NRC. If the custodial agency desires to have commitments in the LTSP that exceed the requirements set forth in Appendix A of 10 CFR 40 and do not have a nexus to radiological health and safety (
Annual updates to financial assurance for decommissioning submitted to NRC should contain a detailed basis (
To be done after the public comment period.
This RIS is not a rule as designated in the Congressional Review Act (5 U.S.C. 801-886) and, therefore, is not subject to the Act.
This RIS contains and references information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
This RIS requires no specific action or written response. If you have any questions about this summary, please contact the technical contact listed below.
The NRC's generic communications may be found on the NRC public Web site,
Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of April 4, 11, 18, 25, May 2, 9, 16, 23, 30, June 6, 13, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of April 4, 2011.
There are no meetings scheduled for the week of April 11, 2011.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of May 16, 2011.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
The April 14, 2011, Briefing on Status of NRC Response to Events in Japan and Briefing on Radiological Consequences and Potential Health Effects scheduled on April 14, 2011, has been cancelled. The Information Briefing on Emergency Preparedness previously scheduled on May 12, 2011, has been rescheduled on May 3, 2011. The Briefing on the Progress of the Task Force Review of NRC Processes and Regulations Following the Events in Japan previously scheduled on May 3, 2011, has been rescheduled on May 12, 2011.
The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an e-mail to
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget (OMB) a request for review of a revised information collection. This information collection, “Life Insurance Election” (OMB Control No. 3206-0230; SF 2817), is used by Federal employees and assignees (those who have acquired control of an employee/annuitant's coverage through an assignment or “transfer” of the ownership of the life insurance). Clearance of this form for use by active Federal employees is not required according to the Paperwork Reduction Act (Pub. L. 98-615). The Public Burden Statement meets the requirements of 5 CFR 1320.8(b)(3). Therefore, only the use of this form by assignees, i.e. members of the public, is subject to the Paperwork Reduction Act.
Comments are particularly invited on whether this information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Approximately 150 SF 2817 forms are completed annually by assignees. This form takes approximately 15 minutes to complete. The annual estimated burden is 37.5 hours.
For copies of this proposal, contact Cyrus S. Benson by telephone at (202) 606-4808, by FAX (202) 606-0910, or by e-mail to
Comments on this proposal should be received within 60 calendar days of the date of this publication.
Send or deliver comments to Christopher N. Meuchner, FSA, Life, & Long Term Care Insurances, Federal Employee Insurance Operations, Healthcare & Insurance, U.S. Office of Personnel Management, 1900 E Street, NW.—Room 2H22, Washington, DC 20415-3661.
U.S. Office of Personnel Management.
60-day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revised information collection request (ICR) 3206-0202, Request to Change Federal Employees Health Benefits (FEHB) Enrollment for Spouse Equity/Temporary Continuation
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until June 6, 2011. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to U.S. Office of Personnel Management, Ronald W. Melton, Program Manager, Program Planning and Evaluation, Federal Employee Insurance Operations, Healthcare & Insurance, 1900 E Street, NW., Room 3425, Washington, DC 20415-3650 or send via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Retirement Services Publications Team, Office of Personnel Management, 1900 E Street, NW., Room 4332, Washington, DC 20415,
The Request to Change Federal Employees Health Benefits (FEHB) Enrollment for Spouse Equity/Temporary Continuation of Coverage (TCC) Enrollees/Direct Pay Annuitants is used by former spouses, Temporary Continuation of Coverage recipients, and Direct Pay Annuitants who are eligible to elect, cancel, or change health benefits enrollment during open season.
U.S. Office of Personnel Management.
30-day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revised information collection request (ICR) 3206-0235, Letter Reply to Request for Information, RI 20-64, and Former Spouse Survivor Annuity Election, RI 20-64A. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until May 5, 2011. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503,
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503,
RI 20-64, Letter Reply to Request for Information, is used by the Civil Service Retirement System (CSRS) to provide information about the amount of annuity payable after a survivor reduction, to explain the annuity reductions required to pay for the survivor benefit, and to give the beginning rate of survivor annuity. RI 20-64A, Former Spouse Survivor Annuity Election, is used by the CSRS to obtain a survivor benefits election from annuitants who are eligible to elect to provide survivor benefits for a former spouse. RI 20-64B, Information on Electing a Survivor Annuity for Your Former Spouse, is a pamphlet that provides important information to retirees under the CSRS who want to provide a survivor annuity for a former spouse.
U.S. Office of Personnel Management.
30-day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a revised information collection request (ICR) 3206-0144, We Need the Social Security Number of the Person Named Below, RI 38-45. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The information collection was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until May 5, 2011. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503,
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503,
We Need the Social Security Number of the Person Named Below, RI 38-45, is used by the Civil Service Retirement System and the Federal Employees Retirement System to identify the records of individuals with similar or the same names. It is also needed to report payments to the Internal Revenue Service.
U.S. Office of Personnel Management.
60-day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an existing information collection request (ICR) 3206-0179, Disabled Dependent Questionnaire. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until June 6, 2011. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to U.S. Office of Personnel Management, Linda Bradford (Acting), Deputy Associate Director, Retirement Operations, Retirement Services, 1900 E Street, NW., Room 3305, Washington, DC 20415-3500 or send via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Publications Team, Office of Personnel Management, 1900 E Street, NW., Room 4332, Washington, DC 20415,
The RI 30-10, Disabled Dependent Questionnaire, is used to collect sufficient information about the medical condition and earning capacity for the Office of Personnel Management to be able to determine whether a disabled adult child is eligible for health benefits coverage and/or survivor annuity payments under the Civil Service Retirement System or the Federal Employees Retirement System.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of China Changjiang Mining & New Energy Co., Ltd. (“CHJI”), a Nevada corporation previously known as North American Gaming and Entertainment Corporation. CHJI has headquarters and operations in the People's Republic of China and trades in the over-the-counter market under the symbol “CHJI.”
Questions have arisen regarding the accuracy and completeness of information contained in CHJI's public filings with the Commission concerning, among other things, the company's financial statements for 2009 and 2010. CHJI has failed to disclose that (a) the company filed its last periodic report on Form 10-Q for the quarter ended September 30, 2010 without the required review of the interim financial statements by an independent public accountant; and (b) the company's independent auditor has resigned, withdrawn its audit opinion issued April 16, 2010 relating to the audit of the company's consolidated financial statements as of December 31, 2009, and informed the company that the financial statements for the quarters ended March 31, June 30, and September 30, 2010 could no longer be relied upon.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Fee Schedule to codify the Exchange's existing practice of assessing fees for transactions in exchange-traded note (“ETN”)
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on April 1, 2011.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to codify the Exchange's existing practice of assessing fees for transactions in ETN options at the same rates for ETF options. Specifically, the Exchange is proposing to amend Section II of the Exchange's Fee Schedule, titled Equity Options Fees, and Section III, titled Singly Listed Options, by including references to ETNs in those
The Exchange is not proposing to amend any fees.
The Exchange is also proposing to make conforming amendments to the Table of Contents and Section IV, titled PIXL Pricing, of the Fee Schedule.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that it is reasonable to add ETNs specifically to Sections II and III because it would codify the Exchange's existing practice of assessing fees for ETN options in a manner similar to ETF options. This proposal would add clarity to the Exchange's Fee Schedule.
The Exchange believes that it is equitable because the fees in Sections II and III would be uniformly applied to all market participants transacting equity options in symbols other than those listed in Section I of the Fee Schedule.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2011-38 and should be submitted on or before April 26, 2011.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Section I of the Exchange's Fee Schedule titled “Rebates and Fees for Adding and Removing Liquidity in Select Symbols,” specifically to amend the Select Symbols.
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on April 1, 2011.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the list of Select Symbols in Section I of the Exchange's Fee Schedule, titled “Rebates and Fees for Adding and Removing Liquidity in Select Symbols” in order to attract additional order flow to the Exchange.
The Exchange displays a list of Select Symbols in its Fee Schedule at Section I, “Rebates and Fees for Adding and Removing Liquidity in Select Symbols,” that are subject to the rebates and fees in that section. Among those symbols is ON Semiconductor Corp (“ONNN”), which the Exchange is proposing to remove from the list of Select Symbols. The Exchange is also proposing to add Silver Wheaton Corp. (“SLW”) to the list of Select Symbols in Section I.
While changes to the Fee Schedule pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on April 1, 2011.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that it is reasonable to remove ONNN from its list of Select Symbols and add SLW to its list of Select Symbols to attract additional order flow to the Exchange. The Exchange anticipates that the addition of SLW to Section I of the Fee Schedule would attract market participants to transact equity options at the Exchange because of the available rebates. In addition, the Exchange believes that applying the fees in Section II to ONNN, including the opportunity to receive payment for order flow, would also attract order flow to the Exchange.
The Exchange believes that it is equitable to amend the list of Select Symbols by removing ONNN and adding SLW because the list of Select Symbols would apply uniformly to all categories of participants in the same manner. All market participants who trade the Select Symbols would be subject to the rebates and fees in Section I of the Fee Schedule. Also, all market participants would be uniformly subject to the fees in Section II.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend certain rules relating to the listing and trading of security futures on the Exchange. The changes are being proposed to conform certain CFE rules to current parallel rules of OneChicago, LLC (“OCX”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, CFE 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. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule is to amend certain rules governing the listing and trading of security futures on the Exchange. The changes are being made to conform certain CFE rules to current parallel rules of OCX.
CFE is proposing to amend Rule 417 by adding provisions for regulatory halts. OCX made a similar rule change to make clear that a “regulatory halt” applies not only to the suspending of all trading in equity securities on the underlying national securities exchange but also to a trading pause on an individual underlying equity security that has been imposed by the rules of the national securities exchange.
CFE is proposing to amend Rule 517 and CFE Policy and Procedure VII to change the quoting requirements for Market Makers. Presently, a market maker, when providing quotations, quotes with a maximum bid/ask spread of no more than the greater of $0.20 (the “20 Cent Spread”) of 150 percent of the bid/ask spread in the primary market for the security underlying the Security Future. The proposed rule change will raise the 20 Cent Spread to $5. This change will be affected by amending subparagraph (n) to Rule 517 and subparagraph C to CFE Policy and Procedure VII. OCX made a similar rule change raising its 20 Cent Spread to $5, which was nearly identical to one approved by the SEC for security options.
First, CFE is proposing to amend CFE Policy and Procedure VIII by eliminating the $3 market price maintenance standard. This change will be affected by deleting subparagraph B.1.(v) to CFE Policy and Procedure VIII. OCX made a similar rule change eliminating the $3 market price per share requirement, which was nearly identical to one approved by the SEC for security options.
Second, CFE is proposing to eliminate the prohibition against opening trading in a Single Stock Future with a new delivery month unless the issuer of the underlying satisfies applicable Exchange Act reporting requirements, or corrects any failure within 30 days after the date the report was due to be filed. This change will be affected by deleting subparagraph B.2.(i) to CFE Policy and Procedure VIII. OCX made a similar rule change eliminating this maintenance requirement, which was nearly identical to one approved by the SEC for security options.
CFE is proposing to conform its listing standards to those approved by the SEC and the Commodity Futures Trading Commission in their Joint Order dated November 19, 2009.
The Exchange believes that the proposed rule change is consistent with Section 6(b)
CFE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has become effective on March 22, 2011.
At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 2, 2011, NASDAQ OMX PHLX LLC (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Phlx has proposed to modify Exchange Rule 1012, Series of Options Open for Trading, to expand the range of option strike prices for which $2.50 strike price intervals may be listed under the $2.50 Strike Price Program
In support of its proposal, Phlx stated that $2.50 strike intervals above $75 would afford investors the ability to more closely tailor investment strategies to the precise movement of the underlying security. The Exchange also stated that the number of option classes in the Program has not expanded since 1998, although increasingly more companies have completed initial public offerings since 1998 and significantly more options classes are trading now as compared to 1998. The Exchange stated that the increase would allow it to accommodate investor requests for $2.50 strikes in additional options classes.
Finally, Phlx stated that it analyzed its capacity, and represented that the Exchange and the Options Price Reporting Authority have the necessary systems capacity to handle the potential additional traffic that would result from expanding the Program.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the proposal strikes a reasonable balance between the Exchange's desire to offer a wider array of investment opportunities and the need to avoid unnecessary proliferation of options series and the corresponding increase in quotes and market fragmentation. The Commission expects the Exchange to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
In addition, the Commission notes that Phlx has represented that it believes the Exchange and the Options Price Reporting Authority have the necessary systems capacity to handle the additional traffic associated with the newly permitted listings.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its rules to permit the Exchange to list and trade the Gold ETF Volatility Index (“GVZ”) security futures contract. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, CFE 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. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to permit the Exchange to list and trade security futures on the CBOE Gold ETF Volatility Index (“GVZ” or “GVZ Index”). Chicago Board Options Exchange, Incorporated (“CBOE”) received approval from the SEC to list and trade GVZ options.
The calculation of GVZ is based on the VIX methodology applied to options on the SPDR Gold Trust (“GLD”). The
For each contract month, CBOE will determine the at-the-money strike price. The Exchange will then select the at-the-money and out-of-the money series with non-zero bid prices and determine the midpoint of the bid-ask quote for each of these series. The midpoint quote of each series is then weighted so that the further away that series is from the at-the-money strike, the less weight that is accorded to the quote. Then, to compute the index level, CBOE will calculate a volatility measure for the nearby options and then for the second nearby options. This is done using the weighted mid-point of the prevailing bid-ask quotes for all included option series with the same expiration date. These volatility measures are then interpolated to arrive at a single, constant 30-day measure of volatility.
CBOE will compute values for the GVZ Index underlying security futures on a real-time basis throughout each trading day, from 8:30 a.m. until 3 p.m. (CT). GVZ Index levels will be calculated by CBOE and disseminated at 15-second intervals to major market data vendors.
The contract multiplier for each GVZ futures contract will be $1,000.00. For example, a contract size of one GVZ futures contract would be $18,950 if the GVZ Index level were 18.95 (18.95 x $1,000.00). The Exchange may list for trading up to nine near-term serial months and up to five additional months on the February quarterly cycle for the GVZ futures contract. The minimum fluctuation of the GVZ futures contract will be 0.05 index points, which has a value of $50.00, except that the individual legs and net prices of spread trades in the GVZ futures contract may be in increments of 0.01 index points, which has a value of $10.00. The trading days for GVZ futures contracts shall be the same trading days of GLD options, as those days are determined by CBOE. The trading hours for GVZ contracts will be from 8:30 a.m. Chicago time to 3 p.m.
Exhibit 3 presents contract specifications for GVZ futures.
The generic formula that is used to calculate position limit levels for cash settled Narrow-Based Stock Index Futures set forth in CFE Rule 1901(e) shall not apply to GVZ futures because that formula is premised upon an index that is comprised of stocks. As discussed above, the index components of GVZ are GLD options listed on CBOE. Accordingly, the Exchange is proposing to establish position limit levels for GVZ security futures at levels comparable to those previously established and approved for GVZ options trading by the SEC. Because GVZ futures will have different position limits than under the generic formula for cash settled Narrow-Based Stock Index Futures and for ease of reference of the provisions applicable to GVZ futures by CFE market participants, CFE proposes to have a separate contract specification rule chapter for GVZ futures in CFE Rule Chapter 16.
Specifically, GVZ futures will be subject to position limits under CFE Rule 412 (Position Limits). A person may not own or control: (1) More than 5,000 contracts net long or net short in all GVZ futures contracts combined; (2) more than 3,000 contracts net long or net short in the expiring GVZ futures contract month; and (3) more than 1,350 contracts net long or net short in the expiring GVZ futures contract held during the last five (5) trading days for the expiring GVZ futures contract month.
The final settlement date for a GVZ futures contract shall be on the third Friday of the expiring futures contract month. If the third Friday of the expiring month is a CBOE holiday, the final settlement date for the expiring contract shall be the CBOE business day immediately preceding the third Friday. Trading on the GVZ futures contract will terminate on the business day immediately preceding the final settlement date of the GVZ futures contract for the relevant spot month. When the last trading day is moved because of a CFE holiday, the last trading day for an expiring GVZ futures contract will be the day immediately preceding the last regularly-scheduled trading day.
The final-settlement value for GVZ futures shall be a Special Opening Quotation (“SOQ”) of the GVZ Index calculated from the sequence of opening prices of a single strip of GLD options expiring 30 days after the settlement date. The opening price for any series in which there is no trade shall be the average of that option's bid price and ask price as determined at the opening of trading. Exercise will result in delivery of cash on the business day following expiration. The final settlement value will be rounded to the nearest $0.01.
Settlement of GVZ futures contracts will result in the delivery of a cash settlement amount on the business day immediately following the final settlement date. The cash settlement amount on the final settlement date shall be the final mark to market amount against the final settlement price of the GVZ futures contract multiplied by $1,000.00.
If the final settlement value is not available or the normal settlement procedure cannot be utilized due to a trading disruption or other unusual circumstance, the final settlement value will be determined in accordance with the rules and bylaws of The Options Clearing Corporation (“OCC'”).
Pursuant to Exchange Policy and Procedure VIII E. (Eligibility for Listing Security Futures on Securities Approved for Options Trading), the Exchange may list securities futures on GVZ because GVZ is eligible to underlie
Block trades in the GVZ futures contract will be permitted. Pursuant to CFE Rule 415(a)(i), the minimum Block Trade quantity for the GVZ futures contract will be 200 contracts if there is only one leg involved in the trade.
No natural person associated with a Trading Privilege Holder or Authorized Trader that has knowledge of a pending Block Trade of such Trading Privilege Holder or Authorized Trader, or a Customer thereof in the GVZ future on the Exchange, may enter an Order or execute a transaction, whether for his or her own account or, if applicable, for the account of a Customer over which he or she has control, for or in the GVZ Future to which such Block Trade relates until after (i) such Block Trade has been reported to and published by the Exchange and (ii) any additional time period from time to time prescribed by the Exchange in its block trading procedures or contract specifications has expired.
Exchange of Contract for Related Position (“ECRP”) transactions, as set forth in CFE Rule 414, in the GVZ futures contract will be permitted. Any Exchange of Contract for Related Position transaction must satisfy the requirements of Rule 414.
The customer margin requirements for GVZ futures will be governed by CFE Rule 517 (Customer Margin Requirements for Contracts That Are Security Futures).
The Exchange believes that the proposed rule change is consistent with Section 6(b)
CFE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has become effective on March 25, 2011.
At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice of reporting requirements submitted for OMB review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before May 5, 2011. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to: Agency Clearance Officer, Jacqueline White, Small Business Administration, 409 3rd Street, SW., 5th Floor, Washington, DC 20416; and OMB Reviewer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
Notice is hereby given that Convergent Capital Partners II, L.P., 505 North Highway 169, Suite 245, Minneapolis, MN 55441, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107). Convergent Capital Partners II, L.P., proposes to provide debt financing to Key Health Group, Inc., 30699 Russell Ranch Road #170, Westlake Village, CA 91362-7315. The financing is contemplated to provide capital that contributes to the growth and overall sound financing of the Key Health Group, Inc.
The financing is brought within the purview of § 107.730(a)(1) and § 107.730(a)(4) of the Regulations because Convergent Capital Partners II, L.P.'s financing will discharge an obligation owed to Convergent Capital Partners I, L.P., which is considered an Associate and because Convergent Capital Partners I, L.P., has a potential equity interest in Key Health Group, Inc. of greater than ten percent.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment and Innovation, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 3.750 (3
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
Department of State.
Notice.
The Secretary of State has determined that Belarusneft has engaged in a sanctionable investment described in section 5(a)(1) of the Iran Sanctions Act of 1996 (ISA) (50 U.S.C. 1701 note) and that certain sanctions should be imposed as a result.
Effective April 5, 2011.
On general issues: Brian Breuhaus, Office of Terrorism Finance and Economic Sanctions Policy, Department of State,
Pursuant to the authority delegated to the Secretary of State in the Presidential Memorandum of November 21, 1996, 61 FR 64249 (the “Delegation Memorandum”), the Secretary has determined that Belarusneft has engaged
1. Export-Import Bank assistance for exports to sanctioned persons. The Export-Import Bank of the United States shall not give approval to the issuance of any guarantee, insurance, extension of credit, or participation in the extension of credit in connection with the export of any goods or services to Belarusneft.
2. Export sanction. The United States Government shall not issue any specific license and shall not grant any other specific permission or authority to export any goods or technology to Belarusneft under—
a. The Export Administration Act of 1979 (50 U.S.C. Appx. §§ 2401
b. The Arms Export Control Act (22 U.S.C. 2751
c. The Atomic Energy Act of 1954 (42 U.S.C. 2011
d. Any other statute that requires the prior review and approval of the United States Government as a condition for the export or reexport of goods or services.
3. Loans from United States financial institutions. United States financial institutions shall be prohibited from making loans or providing credits to Belarusneft totaling more than $10,000,000 in any 12-month period unless Belarusneft is engaged in activities to relieve human suffering and the loans or credits are provided for such activities.
4. Procurement sanction. The United States Government shall not procure, or enter into any contract for the procurement of, any goods or services from Belarusneft.
These sanctions shall remain in effect until otherwise directed pursuant to the provisions of the ISA or other applicable authority. Pursuant to the authority delegated to the Secretary of State in the Delegation Memorandum, relevant agencies and instrumentalities of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this notice.
The following constitutes a current, as of this date, list of persons on whom sanctions are imposed under the ISA. The particular sanctions imposed on an individual company are identified in the relevant
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption, request for comments.
FMCSA announces receipt of applications from 8 individuals for an exemption from the prohibition against persons with a clinical diagnosis of epilepsy or any other condition which is likely to cause a loss of consciousness or any loss of ability to operate a commercial motor vehicle (CMV) from operating CMVs in interstate commerce. If granted, the exemptions would enable these individuals with seizure disorders to operate CMVs in interstate commerce.
Comments must be received on or before May 5, 2011.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2011-0089 using any of the following methods:
•
•
•
•
Each submission must include the Agency name and the docket ID for this Notice. Note that DOT posts all comments received without change to
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statutes also allow the Agency to renew exemptions at the end of the 2-year period. The 8 individuals listed in this notice have recently requested an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8), which applies to drivers who operate CMVs as defined in 49 CFR 390.5, in interstate commerce. Section 391.41(b)(8) states that a person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a commercial motor vehicle.
FMCSA provides medical advisory criteria for use by medical examiners in determining whether drivers with certain medical conditions should be certified to operate commercial motor vehicles in intrastate commerce. The advisory criteria indicates that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause which did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a commercial motor vehicle should be made on an individual basis by the medical examiner in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.
In those individual cases where a driver had a seizure or an episode of loss of consciousness that resulted from a known medical condition (e.g., drug reaction, high temperature, acute infectious disease, dehydration, or acute metabolic disturbance), certification should be deferred until the driver has fully recovered from that condition, has no existing residual complications, and is not taking anti-seizure medication. Drivers with a history of epilepsy/seizures off anti-seizure medication and seizure-free for 10 years may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.
Mr. Sessions is a CMV driver in the state of Maine. He was diagnosed with seizure disorder in 1985 and placed on medication with good control until 1989 when his doctor recommended stopping the medicine. Mr. Sessions suffered a relapse seizure due to improper withdrawal advice in 1989 and resumed his medication. He was withdrawn successfully from his anti-seizure medication in 2007 and has remained medication free since that time. Mr. Sessions believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free for 22 years and off anti-seizure medication for 4 years.
Mr. Schutz is a CMV driver in the state of Ohio. He states that he was diagnosed with a brain tumor in 2002 and that he suffered a seizure due to the tumor in July of that year. He had brain surgery in November 2002 and the tumor was successfully removed. Mr. Schutz has been taking the anti-seizure medication Dilantin since that time and has no further seizures. He has his medication levels checked often by blood tests and remains compliant with his regimen. Mr. Schutz believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free for 9 years and has been on anti-seizure medication since 2002.
Mr. Sherwood is a CMV driver in the state of Idaho. He states that he had a seizure caused by a brain tumor in 1997 and that the tumor was successfully removed during the same year. Mr. Sherwood has taken anti-seizure medication (Carbotrol) since 1997 with no further seizure activity. His doctor supports Mr. Sherwood's application for exemption because of his successful surgery and medication compliance. Mr. Sherwood believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free since 1997, has an excellent driving record, and is compliant with his medication regimen for seizures.
Mr. Eveland is a CMV driver in the state of Wisconsin. He was diagnosed with one unprovoked seizure in 2003 and placed on the anti-seizure medication Keppra at that time. His physician states that Mr. Eveland has had no further seizures and that his medication level is checked regularly by blood tests. The doctor states that Mr. Eveland is safe to operate a motor vehicle and that he is compliant with his medication. Mr. Eveland believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has maintained good medication control and has remained seizure-free for 8 years.
Mr. Cekovic is a CMV driver in the state of Pennsylvania. He was diagnosed with a seizure disorder in January 2009 and placed on the anti-seizure medication Keppra at that time. His treating physician states that he is compliant with his medication regimen and that his risk of a recurrent seizure is very low. The CMV that he operates is a “bucket truck” for a power and light company and Mr. Cekovic states that the maximum distance he drives between job sites is no more than 20 miles per day.
Mr. Kane is a CMV operator in the state of Massachusetts and he had a seizure in 2006. He had one other seizure in December 2009 and was placed on Keppra by his treating physician. Both seizures were listed as being from “unknown causes”. His diagnosis is seizure disorder and he has done well on his medication with no further seizures according to his treating physician. Mr. Kane states that his maximum daily average CMV mileage would be between 5-20 miles per day.
Mr. Keith is a CMV driver from Missouri and suffered a seizure in October 2009. He was placed on the anti-seizure medication Dilantin at that time. Mr. Keith also reported that he had two childhood episodes of febrile seizures. Mr. Keith was able to discontinue his medication with no ill effects in March 2010 and diagnostic testing revealed that he does not exhibit epilepsy symptoms.
Mr. Laqua is a CMV driver from Minnesota and was diagnosed with a partial seizure in March 2009. He was placed on the anti-seizure medication Trileptal at that time and has had no further seizure episodes. Mr. Laqua operates a milk truck.
In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on the exemption applications described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions; request for comments.
FMCSA announces receipt of applications from 16 individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the Federal vision standard.
Comments must be received on or before May 5, 2011.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2011-0057 using any of the following methods:
•
•
•
•
Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 16 individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Ayer, age 57, has had an inferior temporal visual field defect in his left eye since 2007. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/20. Following an examination in 2010, his optometrist noted, “Based on Mr. Ayer's report of no history of problems with his commercial driving and his stable ocular findings, he appears to have sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Ayer reported that he has driven tractor-trailer combinations for 16 years, accumulating 1.1 million miles. He holds a Class A CDL from Kentucky. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Bejarono, 41, has a large corneal scar and retinal detachment in his left eye due to an accident that occurred 5 years ago. The visual acuity in his right eye is 20/20 and in his left eye, light perception. Following an examination in 2010, his ophthalmologist noted, “In my medical opinion, Mr. Bejarono has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Bejarono reported that he has driven tractor-trailer combinations for 8 years, accumulating 400,000 miles. He holds a Class A CDL from Arizona. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Berendt, 60, has had a macular hole in his left eye since 1997. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/70. Following an examination in 2010, his optometrist noted, “It is my medical opinion that Mr. Berendt has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Berendt reported that he has driven straight trucks for 20 years, accumulating 312,000 miles and tractor-trailer combinations for 14 years accumulating 2 million miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows one crash for which he was not cited and two convictions for speeding in a CMV. In the first incident, he exceeded the speed limit by 4 miles per hour (MPH), in the second incident, he exceeded the speed limit by 10 mph.
Mr. Cook, 62, has a central scar in his left eye due to a traumatic injury that occurred in 1967. The visual acuity in his right eye is 20/20 and in his left eye 20/400. Following an examination in 2010, his ophthalmologist noted, “In my opinion, Mr. Cook meets all applicable requirements to drive a commercial vehicle. Therefore there should be no issue in Mr. Cook retaining commercial driving privileges.” Mr. Cook reported that he has driven straight trucks for 5 years, accumulating 350,000 miles and tractor-trailer combinations for 28 years accumulating 3.4 million miles. He holds a Class A CDL from Georgia. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Curran, 42, has refractive Amblyopia in his right eye since birth. The best corrected visual acuity in his right eye is 20/60 and in his left eye, 20/20. Following an examination in 2010, his ophthalmologist noted, “In my opinion, Mr. Curran has adequate visual function to operate a commercial vehicle.” Mr. Curran reported that he has driven straight trucks for 8 years, accumulating 83,200 miles and tractor-trailer combinations for 10 years accumulating 156,000 miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Hewitt, 57, has had a prosthetic right eye since 2004. The best corrected visual acuity in his left eye is 20/15. Following an examination in 2010, his ophthalmologist noted, “In my medical opinion he has sufficient vision to operate a commercial vehicle.” Mr. Hewitt reported that he has driven tractor-trailer combinations for 38 years, accumulating 1.9 million miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Kleinow, 54, has central scarring due to central serious retinopathy. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/50. Following an examination in 2010, his optometrist noted, “Patient/applicant has sufficient vision to perform the driving task required to operate a commercial vehicle.” Mr. Kleinow reported that he has driven straight trucks for 30 years, accumulating 5.6 million miles. He holds a Class B CDL from Iowa. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Lafley, 42, has complete loss of vision in his left eye due to a traumatic injury that occurred in 1978. The visual acuity in his right eye is 20/15. Following an examination in 2010, his optometrist noted, “I feel the vision deficiency of having one eye does not prohibit operation of a motor vehicle and Mr. Lafley's vision is adequate to drive commercial motor vehicles.” Mr. Lafley reported that he has driven straight trucks for 26 years, accumulating 780,000 miles and tractor-trailer combinations for 8 years accumulating 560,000 miles. He holds a Class C operator's license from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Lambert, 47, has had complete loss of vision in his right eye due to a traumatic injury that occurred in 1999. The best corrected visual acuity in his left eye is 20/25. Following an examination in 2010, his ophthalmologist noted, “In my professional opinion, with the aid of the correction lenses that are prescribed, Mr. Lambert will have sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Lambert reported that he has driven tractor-trailer combinations for 18 years, accumulating 2.5 million miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Lanigan, 56, has had histoplasmosis in his left eye since 6 years ago. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/200. Following an examination in 2011, his optometrist noted, “He has a successful 20-year history of commercial driving and his visual status has not affected his ability to perform his job.” Mr. Lanigan reported that he has driven straight trucks for 17 years, accumulating 544,000 miles and tractor-trailer combinations for 1 year accumulating 5,000 miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Odzakovic, 37, has had concussive optic nerve atrophy in his right eye since 1994. The best corrected visual acuity in his right eye is 20/200 and in his left eye, 20/20. Following an examination in 2010, his optometrist noted, “It is our medical opinion that Mr. Odzakovic continues to have sufficient visual capabilities to perform the driving tasks associated with operating a commercial vehicle.” Mr. Odzakovic reported that he has driven straight trucks for 3 years, accumulating 180,000 miles and tractor-trailer combinations for 8 years accumulating 120,000 miles. He holds a Class A CDL from Florida. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Schilling, 38, has had a prosthetic left eye due to a traumatic incident that occurred in 1983. The visual acuity in his right eye is 20/20. Following an examination in 2011, his optometrist noted, “I certify in my medical opinion that Scott has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Schilling reported that he has driven tractor-trailer combinations for 3 years, accumulating 195,000 miles. He holds a Class A CDL from North Dakota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Sims, 58, has a choroidal rupture in his left eye due to a retinal injury sustained in 1962. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/70. Following an examination in 2011, his ophthalmologist noted, “I believe his vision is sufficient to operate a commercial vehicle.” Mr. Sims reported that he has driven straight trucks for 5 years, accumulating 260,000 miles and tractor-trailer combinations for 26 years accumulating 2 million miles. He holds a Class A CDL from Washington. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Smith, 53, has complete loss of vision in his left eye due to traumatic optic neuropathy since age 27. The visual acuity in his right eye is 20/20. Following an examination in 2010, his optometrist noted, “Based on my exam findings and current laws regulating driver's licensure, Mr. Smith has sufficient vision to perform the driving tasks needed to operate a commercial vehicle.” Mr. Smith reported that he has driven straight trucks for 14 years, 700,000 miles. He holds a Class B CDL from Delaware. His driving record for the last 3 years shows no crashes but three convictions for moving violations in a CMV; one conviction was for an improper lane change and the other two convictions were for speeding in a CMV, in both speeding incidents, he exceeded the speed limit by 5 mph.
Mr. Smith, 52, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/200 and in his left eye, 20/20. Following an examination in 2010, his
Mr. Williams, 55, has had loss of vision in his right eye since 2006. The best corrected visual acuity in his right eye is 20/60 and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “In light of the fact that his left eye has perfect 20/20 vision and that he does have a history of decreased vision in the right eye for the past several years, I do feel that he has adapted well to the situation and I have no concerns in his ability to drive a commercial vehicle.” Mr. Williams reported that he has driven straight trucks for 35 years, accumulating 2.6 million miles, tractor-trailer combinations for 20 years accumulating 1.5 million miles and buses for 5 years, accumulating 62,500 miles. He holds a Class D operator's license from Oklahoma. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business May 5, 2011. Comments will be available for examination in the docket at the location listed under the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice Requesting Nominations from among Chief Administrative Officers of State Agencies to the Board of Directors.
The FMCSA solicits nominations and applications for appointment to the Board of Directors of the Unified Carrier Registration Plan (UCR Plan) of interested persons to serve as representatives of chief administrative officers of State agencies responsible for overseeing the Unified Carrier Registration Agreement (UCR Agreement). The Agency will appoint four members from such State agencies, one from each of FMCSA's four service areas. As authorized by 49 U.S.C. 14504a, the UCR Plan is responsible for the administration of the UCR Agreement. The UCR Agreement governs the registration and the collection and distribution of fees paid by for-hire and private motor carriers, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement replaced the Single State Registration System (SSRS), which was repealed as of January 1, 2008.
Nominations or expressions of interest for appointment to the Board of Directors must be received on or before April 20, 2011.
You may submit comments to this notice, identified by docket number FMCSA-2011-0091, by any of the following methods—Internet, facsimile, regular mail, or hand-delivery.
Mr. Jose M. Rodriguez, Office of Research and Information Technology, (202) 366-3517, FMCSA, Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590 or by e-mail at:
Section 4305(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L. 109-59, 119 Stat. 1144, August 10, 2005] enacted 49 U.S.C. 14504a entitled “Unified carrier registration system plan and agreement.” Under the UCR Agreement, motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies that are involved in interstate transportation register and pay certain fees. The UCR Plan's Board of Directors must issue rules and regulations to govern the UCR Agreement. Section 14504a(a)(9) defines the Unified Carrier Registration Plan as the organization of State, Federal, and industry representatives responsible for developing, implementing, and administering the UCRA. Section 14504a(d)(1)(B) directed the Secretary to establish a Unified Carrier Registration Plan Board of Directors made up of 15
The establishment of the Board was announced in the
Each of the four current directors from the chief administrative officers of the State agencies responsible for overseeing the administration of the UCR Agreement are serving terms that expire on May 31, 2011. These directors may continue to serve until their replacements are appointed; each of them may be reappointed (49 U.S.C. 14504a(d)(1)(D)(iii) and (iv)). Today's publication serves as a notice requesting nominations for and public comment on possible appointment of the four members of the UCR Plan's Board of Directors to be appointed from the chief administrative officers of the responsible State agencies in accordance with 49 U.S.C. 14504a(d).
FMCSA seeks either nominations of, or expressions of interest from, individuals to serve as members of the board of directors for the UCR Plan from the responsible State agencies. Nominations or expressions of interest should indicate that the person nominated or recommended meets the statutory requirements specified in 49 U.S.C. 14504a(d)(1)(B)(i). Nominations or expressions of interest must be transmitted by means of the procedures for comments specified earlier in this notice. FMCSA and the Department will make the appointments for the four members from the responsible State agencies for three-year terms, expiring on May 31, 2014.
Surface Transportation Board.
Partial revocation of exemption.
Under 49 U.S.C. 10502, the Board revokes the class exemption as it pertains to the trackage rights described in Docket No. FD 35466
This exemption will be effective on May 5, 2011. Petitions to stay must be filed by April 15, 2011. Petitions for reconsideration must be filed by April 25, 2011.
An original and 10 copies of all pleadings, referring to Docket No. FD 35466 (Sub-No. 1), must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on BNSF's representative: Karl Morell, Of Counsel, Ball Janik LLP, Suite 225, 1455 F Street, NW., Washington, DC 20005.
Joseph H. Dettmar, (202) 245-0395. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Additional information is contained in the Board's decision. Board decisions and notices are available on our Web site at
By the Board, Chairman Elliott and Commissioner Mulvey.
The Department of Treasury, on behalf of itself and the Consumer Financial Protection Bureau (CFPB), will submit the following public information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submission may be obtained by
The data collection will include:
• Consent forms that will be used to obtain the consent of participants in the cognitive interviewing;
• Participant Questionnaires to obtain demographic information about the participants;
• Interview protocols for both consumers and lenders/brokers; and
• Tools that seek input from a larger community through the internet.
The core objective of the data collection is to help refine specific features of the content or design of the form to maximize communication effectiveness while minimizing compliance burden, specifically by:
• Evaluating one or more draft disclosure forms through iterative qualitative testing with consumers and lenders/brokers, including observation of consumers' usage of the disclosure, their understanding of the contents, and the choices they make.
• Collecting supplementary feedback through the internet from consumers, industry, housing counselors, and other interested parties regarding the draft disclosure(s).
The qualitative testing is focused on the purposes of the integrated disclosure to:
• Improve consumer understanding by better disclosing risks and costs so consumers can choose the home loans that best meet their needs;
• Enable “shopping” in terms of comparing loan products and loan offers; and
• Facilitate compliance and ease implementation for industry.
The CFPB implementation team plans to test at six sites in five rounds to allow for changes to the disclosure between rounds. Because consumers are not the only ones who will interact with the loan disclosure, the testing plan includes one-on-one cognitive testing with brokers and lenders to evaluate the usefulness of the form, any potential areas of confusion, and potential implementation and usability challenges.
Screening Process:
Total Burden English interviews (screening and study participation) = 218 hours (26 + 192)
Total Burden Spanish interviews (screening and study participation) = 97 hours (12 + 85)
Estimated number of participants at each opportunity to provide input = 5000.
Time to provide input = 5 minutes.
Estimated participation burden: 417 hours (5 × 5,000/60).
Opportunities for structured input = 3.
Total estimated participation burden = 1,251 hours (417 × 3).
Comments are invited on: (a) Whether the collection of information shall 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 to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques on other forms of information technology; and (e) estimates of capital or start-up costs and cost of operation, maintenance, and purchase of services to provide information. All comments will be a matter of public record.
The Department of the Treasury will submit the following public information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submission may be obtained by contacting the Treasury Departmental Office Clearance Officer listed. Comments regarding these information
Department of the Treasury.
Notice of meeting.
The President's Advisory Council on Financial Capability (“Council”) will convene its second meeting on April 21, 2011 at the Department of Education, 400 Maryland Avenue, SW., Washington, DC, beginning at 11:00 a.m. Eastern Time. The meeting will be open to the public. The Council will: (1) Receive a report from the Council's subcommittees (National Strategy, Financial Access, Research and Evaluation, Partnerships, and Youth) on their progress; and (2) review the composition and focus of the subcommittees.
The meeting will be held on April 21, 2011, at 11 a.m. Eastern Time.
E-mail
Send paper statements to the Department of the Treasury, Office of Financial Education and Financial Access, Main Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
In general, the Department will make all statements available in their original format, including any business or personal information provided such as names, addresses, e-mail addresses, or telephone numbers, for public inspection and photocopying in the Department's library, Room 1428, Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220, on official business days between the hours of 10 a.m. and 5 p.m. You can make an appointment to inspect statements by calling (202) 622-0990. All statements received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.
Dubis Correal, Director, Office of Financial Education, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220, at (202) 622-5770 or
On January 29, 2010, the President signed Executive Order 13530, creating the Council to assist the American people in understanding financial matters and making informed financial decisions, thereby contributing to financial stability. The Council is composed of two
In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. 2 and the regulations thereunder, Dubis Correal, Designated Federal Officer of the Council, has ordered publication of this notice that the Council will convene its second meeting on April 21, 2011, at the Department of Education, 400 Maryland Avenue, SW., Washington, DC, beginning at 11 a.m. Eastern Time. The meeting will be open to the public. Members of the public who plan to attend the meeting must RSVP with their name, organization represented (if any), phone number, and e-mail address. To register, please go to
Wage and Hour Division, Department of Labor.
Final rule.
In this final rule, the Department of Labor (Department or DOL) revises regulations issued pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947 (Portal Act) that have become out of date because of subsequent legislation. These revisions conform the regulations to FLSA amendments passed in 1974, 1977, 1996, 1997, 1998, 1999, 2000, and 2007, and Portal Act amendments passed in 1996.
Montaniel Navarro, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210;
Questions of interpretation and/or enforcement of regulations issued by this agency may be directed to the nearest Wage and Hour Division (WHD) District Office. Locate the nearest office by calling our toll-free help line at (866) 4USWAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of Wage and Hour District and Area Offices at:
The Regulatory Information Number (RIN) identified for this rulemaking changed with the publication of the 2010 Spring Regulatory Agenda due to an organizational restructuring. The old RIN was assigned to the Employment Standards Administration, which no longer exists. A new RIN has been assigned to the WHD.
The FLSA requires covered employers to pay their nonexempt employees a Federal minimum wage and overtime premium pay of time and one-half the regular rate of pay for hours worked in excess of forty (40) in a work week. The FLSA also contains a number of exemptions from the minimum wage and overtime pay requirements.
Over the years, Congress has amended the FLSA to refine or to add to these exemptions and to clarify the minimum wage and overtime pay requirements. A 1974 amendment to section 13(b)(10) of the FLSA, 29 U.S.C. 213(b)(10), extended an overtime exemption to include any salesman primarily engaged in selling boats and eliminated the overtime exemption for partsmen and mechanics servicing trailers or aircraft. Congress also in 1974 revised aspects of the FLSA's tip credit provisions, 29 U.S.C. 203(m) and (t), which were further revised by amendments enacted in 1977 and 1996. As part of the Small Business Job Protection Act of 1996, Congress amended section 4(a) of the Portal Act, 29 U.S.C. 254(a), to define circumstances under which pay is not required for employees who use their employer's vehicle for home-to-work commuting purposes. The 1996 Act also created a youth opportunity wage of $4.25 per hour under section 6(g) of the FLSA, 29 U.S.C. 206(g). In 1997, Congress amended section 13(b)(12) of the FLSA, 29 U.S.C. 213(b)(12), to expand the exemption from overtime pay for workers on ditches, canals, and reservoirs when 90% (rather than 100%) of the water is used for agricultural purposes. In 1998, Congress added section 3(e)(5) to the FLSA, 29 U.S.C. 203(e)(5), to provide that the term “employee” does not include individuals who volunteer to private non-profit food banks solely for humanitarian purposes and who receive groceries from those food banks. In 1999, Congress added section 3(y) to the FLSA, 29 U.S.C. 203(y), to define an employee who is engaged in “fire protection activities.” In 2000, Congress added section 7(e)(8) to the FLSA, 29 U.S.C. 207(e)(8), that treats stock options meeting certain criteria as an additional type of remuneration that is excludable from the computation of the regular rate. As part of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Congress increased the FLSA minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009.
Additionally, a number of courts have examined the interpretation of the FLSA's compensatory time provisions in section 7(o)(5) concerning public agency employers' obligation to grant employees' requests to use “comp time” within a “reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.” 29 U.S.C. 207(o)(5). Finally, the regulations governing the “fluctuating workweek” method of computing half-time overtime pay for salaried nonexempt employees, who work variable or fluctuating hours from week to week need updating to delete outmoded examples.
The Department published a notice of proposed rulemaking (NPRM) in the
The comments reflected a wide variety of views on the merits of particular sections of the proposed regulations. Many included substantive analyses of the proposed revisions. The Department acknowledges that there are strongly held views on several of the issues presented in this rulemaking, and it has carefully considered all of the comments, analyses, and arguments made for and against the proposed changes in developing this final rule. The Department has narrowed the scope of this final rule to address those sections which require change to reflect statutory enactment or outdated examples contained in the regulations and therefore is not proceeding with some of the changes proposed in the NPRM including proposed changes to regulations regarding compensatory time, the fluctuating workweek, and
This section presents a topical summary of the major comments received on the proposed revisions, together with a discussion of the changes that have been made in the final regulatory text in response to the comments received.
The U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Public Law 110-28, 121 Stat. 112 (May 25, 2007), included an amendment to the FLSA that increased the applicable Federal minimum wage under section 6(a) of the FLSA in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009. This legislation did not change the definition of “wage” in section 3(m) of the FLSA for purposes of applying the tip credit formula in determining the wage paid to a qualifying tipped employee. Thus, the minimum required cash (or “direct”) wage for a tipped employee under the FLSA remains $2.13 per hour. The maximum allowable tip credit for Federal purposes under the FLSA increased as a result of the 2007 legislation, and is determined by subtracting $2.13 from the applicable minimum wage provided by section 6(a)(1) of the FLSA.
The Department proposed changes in several of the FLSA's implementing regulations that cite to the applicable minimum wage to reflect these statutory changes, including at 29 CFR 516.28, 531.36, 531.37, 778.110, 778.111, 778.113, and 778.114, as well as changes to the McNamara-O'Hara Service Contract Act regulations to eliminate outdated references to the FLSA minimum wage in 29 CFR 4.159 and 4.167. The Department did not receive any comments specifically addressing these non-substantive conforming updates, although several commenters did commend the Department generally for its effort to update the regulations.
On August 20, 1996, Congress enacted the Small Business Job Protection Act of 1996 (SBJPA), Public Law 104-188, 100 Stat. 1755. SBJPA amended the Portal Act to define circumstances under which pay is not required for employees who use their employer's vehicle for home-to-work commuting purposes. It also amended the FLSA by creating a youth opportunity wage and modifying the allowable tip credit.
Sections 2101 through 2103 of Title II of SBJPA, entitled the “Employee Commuting Flexibility Act of 1996,” amended section 4(a) of the Portal Act, 29 U.S.C. 254(a). The amendment, effective upon enactment, provides that
The use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
The House Committee Report states that the purpose of the amendment is to clarify how the Portal Act applies to “employee use of employer-provided vehicles for commuting at the beginning and end of the workday.” H.R. Rep. No. 104-585, at 6 (1996). It states that such travel time is to be considered noncompensable if the use of the vehicle is “conducted under an agreement between the employer and the employee or the employee's representative.”
This statutory amendment to the Portal Act affects certain regulations in 29 CFR parts 785 and 790 issued pursuant to the FLSA and the Portal Act. Current section 785.9(a) explains the statutory provisions that exclude from work time certain “preliminary” and “postliminary” activities performed prior to or subsequent to the workday. The NPRM proposed to add to that section a new provision that activities incidental to the use of an employer-provided vehicle for commuting are not considered principal activities, and are not compensable, when they meet the requirements of the 1996 amendment. Current § 785.34 discusses the effect of section 4 of the Portal Act on determining whether time spent in travel is working time. The NPRM proposed to add a reference to the statutory conditions under which commuting in an employer-provided vehicle will not be considered part of the employee's principal activities and therefore not compensable. The NPRM also proposed to revise §§ 785.50 and 790.3 to incorporate the 1996 amendment into the quotation of section 4 of the Portal Act.
A number of commenters addressed this proposal. Several commenters noted that the proposal simply quotes the statutory text in the regulation, and they stated that the proposal therefore does not provide adequate guidance regarding the limited impact of this amendment.
Commenters representing employers approved of the addition of language to the regulations to conform them to the Employee Commuting Flexibility Act.
SHRM also suggested that the final rule should state that employees should not incur any out-of-pocket expenses related to commuting, such as for gas, tolls, parking or maintaining the employer's vehicle. The Department notes that the House Committee Report similarly stated that “[i]t is the intent of the Committee that the employee incur no out-of-pocket or direct cost for driving, parking or otherwise maintaining the employer's vehicle in connection with commuting in employer-provided vehicles.” H.R. Rep. No. 104-585, at 5. While the Department has not added language to this effect to the final rule, it notes that its longstanding interpretation of the amendment comports with both the Committee report and SHRM's comment.
As the comments from both employee and employer representatives show, the question of the compensability of employees' commuting time is an important issue. Therefore, the Department does not believe that it would be helpful or appropriate to leave the regulations inconsistent with the statute while it simply starts the NPRM process anew, as a number of employee representatives suggested. Rather, in order to avoid confusion and needless litigation, the Department continues to believe that it is important to update the regulations to reflect the current state of the law by incorporating the statutory provisions of the Employee Commuting Flexibility Act into the regulations. Furthermore, the cases that both employee and employer representatives cited show that issues related to the compensability of driving time and other activities are very fact-specific and must be resolved on a case-by-case basis, in light of all the factors present in the particular situation. As a result, the Department does not believe that it would be useful to include examples in the regulatory text. The Department will consider providing additional guidance at a later date on these and other issues, such as commuting distance, costs, incidental activities, and the nature of the agreement through non-regulatory means. Similarly, because the regulations in 29 CFR part 790 already fully address issues related to the continuous workday principle and principal activities, the Department does not believe it is necessary to add to those regulations. The Department does observe, however, that nothing in the Employee Commuting Flexibility Act or this regulation alters or supersedes continuous workday principles. Only commuting time that occurs before the first principle activity or after the last principle activity in the workday is excluded from compensable time. Therefore, the final rule adopts the changes to §§ 785.9(a), 785.34, 785.50 and 790.3 as proposed.
Section 2105 of the SBJPA amended the FLSA by adding section 6(g), which provides that “[a]ny employer may pay any employee of such employer, during the first 90 consecutive calendar days after such employee is initially employed by such employer, a wage which is not less than $4.25 an hour.” 29 U.S.C. 206(g)(1). This subminimum wage “shall only apply to an employee who has not attained the age of 20 years.” 29 U.S.C. 206(g)(4). The amendment also protects current workers by prohibiting employers from taking action to displace employees, including reducing hours, wages, or employment benefits, for the purpose of hiring workers at the opportunity wage. 29 U.S.C. 206(g)(2). It also states that any employer violating this subsection shall be considered to have violated the anti-discrimination provisions of section 15(a)(3) of the FLSA. 29 U.S.C. 206(g)(3).
The NPRM proposed to add a new subpart G to 29 CFR part 786 to set forth the provisions of the youth opportunity wage. The Department received one comment regarding this update. The National Automobile Dealers Association stated that it supported the proposal. The final rule adopts the new subpart G as proposed but changes the title to “Miscellaneous Exemptions and Exclusions from Coverage.”
Section 2105 of Title II of the SBJPA also amended section 3(m) of the FLSA, 29 U.S.C. 203(m), by providing that
In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to—(1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on the date of the enactment of this paragraph; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 6(a)(1). The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
Subsection (2) of the 1996 amendments bases an employer's maximum allowable tip credit on a specific formula in relation to the applicable minimum wage, stating that an employer may take a tip credit equal to the difference between the required minimum cash wage specified in paragraph 3(m)(1) ($2.13) and the minimum wage ($7.25 effective July 24, 2009). Thus, the maximum Federal tip credit that an employer currently is permitted to claim under the FLSA is $7.25 minus $2.13, or $5.12 per hour.
As explained in the NPRM, this 1996 amendment affects certain regulations in 29 CFR part 531. Current § 531.50(a) quotes section 3(m) of the FLSA as it appeared in 1967, when the regulation was published. To incorporate the 1996 amendment, the NPRM proposed to replace the old statutory language with the current statutory provision. Current §§ 531.56(d), 531.59, and 531.60 refer to the pre-1996 statutory language setting the tip credit at 50 percent of the minimum wage. The proposed rule deleted or changed these references to reflect the current statutory requirements (maximum tip credit equaling the difference between the minimum wage required by section 6(a)(1) of the FLSA and the $2.13 required cash wage). Additional changes related to tipped employees are discussed in this preamble at sections 7B and 8,
The Department received many comments relating to tipped employees; however, those comments generally addressed the issues discussed
Section 105 of The Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act, Public Law 105-78, 111 Stat. 1467 (Nov. 13, 1997), amended section 13(b)(12) of the FLSA, 29 U.S.C. 213(b)(12), which provides an overtime exemption for agricultural employees and employees employed in connection with the operation or maintenance of certain waterways used for supply and storing of water for agricultural purposes. The 1997 amendment deleted “water for agricultural purposes” and substituted “water, at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year.” Thus, this amendment makes the exemption from overtime pay requirements applicable to workers on water storage and irrigation projects when at least 90 percent of the water is used for agricultural purposes, rather than when the water is used exclusively for agricultural purposes.
The NPRM proposed to update the regulations in 29 CFR part 780, Subpart E to incorporate the statutory amendment. Thus, proposed § 780.400 correctly quoted the statute, including the amendment. Proposed § 780.401 provided an updated general explanatory statement of the history of the exemption. Proposed § 780.406 deleted the last sentence of the current rule, which refers to the 1966 amendments, as no longer necessary. Proposed § 780.408 was updated to describe the “at least 90 percent” requirement for using the water for agricultural purposes.
The Department received one comment addressing this proposal. The AFL-CIO noted that current § 780.408 states that if a small amount of water is used by the farmer for domestic purposes, this does not prevent the application of the exemption. The AFL-CIO stated that the “[t]olerance for a `small amount' of water that is used for domestic purposes may have made sense under the old statutory provision, which required exclusive use of the water for agricultural purposes. However, now that Congress has amended the exemption to permit 10 percent of the water for non-agricultural purposes, there is no longer any justification for this exception. Any water that is used for `domestic purposes' (that is, non-agricultural purposes) should count toward the new statutory 10 percent tolerance.”
The Department agrees that, in light of the 10 percent tolerance for water used for non-agricultural purposes, there is no longer any need for the specific tolerance of domestic use by a farmer. Therefore, the final rule further modifies proposed § 780.408 to delete the three sentences relating to domestic use on farms. The final rule adopts §§ 780.400, 780.401 and 780.406 as proposed.
Section 1 of the Amy Somers Volunteers at Food Banks Act, Public Law 105-221, 112 Stat. 1248 (Aug. 7, 1998), amended section 3(e) of the FLSA, 29 U.S.C. 203(e), by adding section (5) to provide that the term “employee” does not include individuals volunteering solely for humanitarian purposes at private non-profit food banks and who receive groceries from those food banks. 29 U.S.C. 203(e)(5). The proposed rule renamed 29 CFR part 786 “Miscellaneous Exemptions and Exclusions From Coverage” and added subpart H to set forth this exclusion from FLSA coverage. The Department did not receive any comments specifically addressing this section of the NPRM. The final rule adopts subpart H as proposed.
In 1999, Congress amended section 3 of the FLSA, 29 U.S.C. 203, by adding section (y) to define “an employee in fire protection activities.” This amendment states that an “employee in fire protection activities” means
The NPRM proposed to make several revisions to 29 CFR part 553, subpart C,
The Department reexamined other regulations in part 553, Subpart C, in light of the section 3(y) amendment to assess whether any other changes were appropriate. Current § 553.210 characterizes as exempt work-related incidental activities, such as equipment maintenance, lecturing and fire prevention inspections. Current § 553.210 also recognizes that employees can be included within the exemption whether their status is “trainee,” “probationary,” or “permanent,” and regardless of their particular specialty or job title or assignment to certain support activities. The Department stated its belief in the NPRM that these provisions are consistent with statutory intent and remain the appropriate interpretation of the new statutory definition and, thus, the Department proposed no further changes to § 553.210.
Current § 553.212 recognizes that exempt employees may engage in some nonexempt work, such as firefighters who work for public forest conservation agencies and who plant trees and perform other conservation activities unrelated to their firefighting duties during slack times, and set a 20% tolerance for such work. As explained in the NPRM, the Department reexamined this regulation, particularly in light of
The Department received several comments addressing these issues. The National Public Employment Labor Relations Association (“NPELRA”) stated that the removal of the 20 percent test was “an important clarification” because it was obsolete and yet some people still believe that it applies. This commenter suggested that the rules should go further in describing the terms “legal authority and responsibility to engage in fire suppression” (as meaning that the employee who has been trained may engage in such tasks) and “is engaged in the prevention, control or extinguishment of fires” (because a fire department at an airport may extinguish a fire only once per year or less). The IMPA-HR, IMLA, and NLC stated that it was important to distinguish between the section 3(y)(1) tests relating to “the status of employees who are trained in fire suppression—that they have the legal authority and responsibility to engage in fire suppression and be employed by a public fire department”—and the disjunctive test in section 3(y)(2) relating to the duties of an employee, which require “that the employee either be engaged in firefighting or respond to emergencies.” They agreed with the court's statement in
On the other hand, William Pincus, an attorney representing firefighters, stated that the 20% test was not obsolete because, even after the section 3(y) amendment, it is still necessary to distinguish between exempt and nonexempt activities. The 20 percent test defines when employees who perform work that is nonexempt fall outside the exemption. This commenter cited a pre-amendment court decision holding that without the rule a public agency would be free to assign a firefighter to do any kind of work (road repair, sanitation, parks and recreation) without fear of losing the exemption, and stated that nothing in the amendment changes this analysis. The International Association of Fire Fighters (“IAFF”) commented that the second sentence of proposed § 553.210(a) would create confusion because, by using the wording “the term includes”, the proposal implies that employees engaged in incidental nonfirefighting functions such as equipment maintenance, attending community fire drills and inspecting homes for fire hazards are exempt even if they do not satisfy the section 3(y) statutory criteria. The IAFF also stated that the third sentence of this section is overbroad because is suggests that the term includes all “trainees.” The IAFF stated that “trainees who have not completed requisite training and have no certification in fire suppression are neither `trained,' nor have the `legal authority * * * to engage,' in fire suppression.” The commenter thus distinguished between a ten-year firefighter sent to a training course in hazardous materials who remains exempt and an untrained individual in an introductory fire suppression course before certification. This commenter further suggested that the third sentence, relating to employees assigned to support activities, is incorrect because “[w]here employees have been assigned to other jobs in which they do not have the authority or responsibility
After careful review of the comments received on this issue and reexamining the legislative history of the section 3(y) amendment, it is the Department's view that the statutory definition of an “employee in fire protection activities” requires no further regulatory guidance at this time; however, the Department may provide additional guidance in the future, as appropriate. As a result, this final rule implements the proposed change to § 553.210(a) substituting the statutory amendment language for the current four-part regulatory definition of the term “any employee * * * in fire protection activities.” In addition, the Department is deleting the remainder of paragraph (a) as unnecessary due to the statutory definition. This change also removes language from the rule that commenters identified as confusing or inconsistent with FLSA section 3(y). Likewise, current paragraph (b) is deleted from this final rule because it is no longer necessary. Current paragraph (c) of § 553.210 will be redesignated as paragraph (b) in this final rule.
With regard to the 20 percent test, the Department continues to believe that Congress defined, without further limitation, the particular criteria for when an employee qualifies as “an employee in fire protection activities” in section 3(y). Thus, an employee who performs the described duties under the circumstances and the conditions set forth in section 3(y) is “an employee in fire protection activities” without regard to the 20 percent tolerance for nonexempt work contained in § 553.212 of the current rule. The specific definition adopted by Congress renders the 20 percent tolerance for nonexempt work applied under the former regulatory definition obsolete. However, § 553.212 also applies to employees engaged in law enforcement activities, and the definition of “an employee in fire protection activities” in section 3(y) does not impact those employees. Therefore, the final rule does not delete § 553.212(a) in its entirety; instead, it deletes from § 553.212(a) only the reference to employees engaged in “fire protection”. The 20 percent tolerance for nonexempt work for employees engaged in law enforcement activities in section 553.212(a) will remain in effect. Likewise, since section 3(y) did not impact the applicability of section 7(p)(2)'s rule regarding the occasional or sporadic employment of public agency employees, including fire protection and law enforcement personnel, the final rule also retains § 553.212(b), which discusses this statutory provision. Section 553.212(b) does contain a reference to the 20 percent tolerance for nonexempt work, and the final rule makes a slight modification to that section to make clear that the 20 percent tolerance is only applicable to law enforcement personnel.
With regard to the IAFF comments, the current regulation at § 553.214 directly addresses the status of trainees, and it clarifies that a trainee qualifies for exemption “only when the employee meets all the applicable tests described in § 553.210.” The Department is not aware of instances of the exemption being claimed for trainees who have not gained certification and therefore do not have the legal authority or responsibility to engage in fire suppression, or of confusion surrounding this issue since passage of the section 3(y) amendment. Moreover, the Department believes that the statutory terms, such as legal authority and responsibility, should continue to be interpreted and applied on a case-by-case basis, based upon the specific facts in each situation, as reflected in Wage and Hour Opinion Letter FLSA 2006-20 (June 1, 2006). Therefore, no additional changes are required to implement this statutory provision.
The Worker Economic Opportunity Act, Public Law 106-202, 114 Stat. 308 (May 18, 2000), amended §§ 7(e) and 7(h) of the FLSA. 29 U.S.C. 207(e), (h). In § 7(e), a new subsection (8) adds to the types of remuneration that are excluded from the computation of the regular rate when determining overtime pay “[a]ny value or income derived from employer-provided grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program” meeting particular criteria. In § 7(h), the amendment clarifies that the amounts excluded under § 7(e) may not be counted toward the employer's minimum wage requirement under section 6, and that extra compensation excluded pursuant to the new subsection (8) may not be counted toward overtime pay under § 7.
The proposed rule incorporated the amendments made by the Worker Economic Opportunity Act by adding to the regulatory provisions which simply quote the statute in § 778.200(a) and (b). Section 778.208 was also revised simply to update from “seven” to “eight” the number of types of remuneration excluded in computing the regular rate.
Only two commenters addressed this section of the proposed rule. SHRM stated that “[t]his addition to the existing regulations is appropriate, and we encourage DOL to include it as proposed in its final rule.” The AFL-CIO stated that the Department should do more than just restate the statutory language, specifically noting the need to clarify how an employer must communicate to employees the “terms and conditions” of stock benefit programs and under what “other circumstances” an employee may exercise a stock option or stock appreciation right in less than six months. The AFL-CIO did not offer any regulatory language or suggested solutions that it thought would be helpful, but only stated that the Department should withdraw the proposal and reissue a new NPRM providing further guidance.
The Department does not believe that it would be helpful or appropriate to leave the regulations inconsistent with the statute while it starts the NPRM process anew. Rather, in order to avoid confusion, the Department continues to believe that it is important to update the regulations to reflect the current state of the law by incorporating the Worker Economic Opportunity Act into the regulations. Therefore, the final rule adopts the changes to § 778.200 with minor editorial edits and § 778.208 as proposed. The Department will consider offering further guidance on the issues raised in the comments and other issues through non-regulatory means.
On April 7, 1974, Congress enacted an amendment to section 13(b)(10) of the FLSA, 29 U.S.C. 213(b)(10). Public Law 93-259, 88 Stat. 55 (1974). This amendment added an overtime exemption for salespersons primarily engaged in selling boats (in addition to the pre-existing exemption for sellers of trailers or aircraft). This amendment also eliminated the overtime exemption for partsmen and mechanics servicing trailers or aircraft. The proposed rule revised 29 CFR part 779, Subpart D—Exemptions for Certain Retail or ServiceEstablishments—to conform the regulations to this 1974 amendment. Section 779.371(a) was revised to reflect the amendment's addition of boat salespersons to the exemption. Proposed § 779.372(a) clarified that “any
Section 13(b)(10)(A) of the FLSA provides that “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers” shall be exempt from the overtime requirements of the Act. 29 U.S.C. 213(b)(10)(A). The current regulation at 29 CFR 779.372(c)(4) states that an employee described as a service manager, service writer, service advisor, or service salesman who is not primarily engaged in the work of a salesman, partsman, or mechanic is not exempt under section 13(b)(10)(A).
As discussed in the preamble to the proposed rule, three appellate courts have held that service advisors are exempt under section 13(b)(10)(A) because they are “salesmen” who are primarily engaged in servicing automobiles. 73 FR 43658 (Jul. 28, 2008). Based upon the two earliest court decisions, the Wage and Hour Division in 1978 recognized in an Administrator-issued opinion letter that in certain circumstances service advisors or writers “can be properly regarded as engaged in selling activities.”
A number of commenters addressed this issue. The National Automobile Dealers Association stated that the retail automobile and truck dealership industry has relied upon the Administrator's 1978 opinion letter and that it supported the proposed clarification that such employees are exempt. Littler Mendelson, P.C., similarly stated that it supported the change, because it “will eliminate confusion resulting from the inconsistency between the [Field Operations Handbook] and the current regulatory guidance, and is not a change in the law.”
Other commenters disagreed with the proposed rule. The AFL-CIO stated that the proposal ignored congressional intent “to carve a narrow exemption for salesmen who work at automobile dealerships.” The AFL-CIO, NELA, and NELP traced the legislative history, focusing on the addition of the requirement that the salesman must be “primarily engaged in selling or servicing such vehicles.” These commenters disagreed with the court decisions interpreting the exemption, stating that service advisors merely coordinate between customers and the mechanics who actually perform the services, and that the exemption should not be extended to employees outside its plain language simply because they are “functionally similar” to an exempt employee. The AFL-CIO concluded that “neither integration with exempt employees nor the performance of functions related to those of exempt employees qualifies an employee as one who is
The AFL-CIO stated that, if the Department does treat service writers as salesmen primarily engaged in servicing vehicles, then it urged the Department to exclude any time spent in “selling” warranty work from the determination of whether the writer has spent the majority of his time in selling, since that right to free parts and service has already been sold by the salesman of the vehicle. NELA stated that the proposed regulatory text was confusing because it appears to exempt service writers only if they are selling the servicing of vehicles that the dealership sells, which would be difficult for both the employee and the employer to know. Both NELP and the North Carolina Justice Foundation commented that the proposal exempts service writers based upon their job title alone, rather than based upon an analysis of their actual job duties, which is contrary to the requirement to look at the circumstances of the whole activity.
Upon further consideration of the issue, the Department has decided not to adopt the proposed change to § 779.372(c)(4) to specifically include service managers, service writers, service advisors, or service salesmen as qualifying for exemption. As commenters point out, the statute does not include such positions and the Department recognizes that there are circumstances under which the requirements for the exemption would not be met. The Department notes that current § 779.372(c)(1) is based on its reading of 13(b)(10)(A) as limiting the exemption to salesmen who sell vehicles and partsmen and mechanics who service vehicles. The Department believes that this interpretation is reasonable and disagrees with the Fourth Circuit's conclusion in
Section 3(m) of the FLSA defines the term “wage.” The FLSA was amended in 1966 to include hotels and restaurants within the scope of its coverage for the first time. In order to alleviate these industries' new minimum wage obligations, the 1966 amendments also provided for the first time, within section 3(m)'s definition of a “wage,” that an employer could utilize a limited amount of its employees' tips as a credit against its minimum wage obligations to those employees through a so-called “tip credit.” The Department's current tip credit regulations were promulgated in 1967, one year after the tip credit was first introduced, and prior to the 1974 amendments to the FLSA, which amended the tip credit provision in section 3(m) by providing that an employer could not take a tip credit unless:
(1) [its] employee has been informed by the employer of the provisions of this subsection and (2) all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
The section 3(m) requirement that the employer “inform” its tipped employees of the provisions of section 3(m) prior to taking a tip credit has been strictly enforced by the Department and by the courts. Courts have disallowed the use of the tip credit for lack of notice even “where the employee has actually received and retained base wages and tips that together amply satisfy the minimum wage requirements,” remarking that “[i]f the penalty for omitting notice appears harsh, it is also true that notice is not difficult for the employer to provide.”
Prior to the 1974 amendments, the compensation of tipped employees was often a matter of agreement. Tipped employees could agree, for example, that an employer was only obligated to pay cash wages when an employee's tips were less than the minimum wage, or that the employee's tips would be turned over to the employer, who could then use the tips to pay the full minimum wage.
Under the 1974 amendments to section 3(m), an employer's ability to utilize an employee's tips is limited to taking a credit against the employee's tips as permitted by section 3(m). Section 3(m) provides the only method by which an employer may use tips received by an employee. An employer's only options under section 3(m) are to take a credit against the employee's tips up to the statutory differential, or to pay the entire minimum wage directly.
As amended in 1996, section 3(m) provides that the “wage” of a tipped employee equals the sum of the cash wage paid by the employer, which is fixed at a minimum of $2.13 an hour, and the amount it claims as a tip credit. The maximum permissible tip credit under section 3(m) is calculated using the current Federal minimum wage. Thus, in a situation in which an employee earns $10 an hour in tips and the employer pays $2.13 an hour in cash wages and claims the statutory maximum as a tip credit, the employee has received only the minimum wage because tips in excess of the maximum tip credit are not considered “wages” under 3(m). Using the current minimum wage of $7.25 an hour as an example, the maximum permissible tip credit is $7.25 minus $2.13, which permits the employer to take a tip credit against its minimum wage obligation of $5.12 an hour, provided it has informed its tipped employees of the tip credit provision and has permitted the employees to retain all of their tips.
Since the amount of tips the employee receives in excess of the allowable tip credit are not considered “wages” paid by the employer, any deductions by the employer from the employee's tips would result in a violation of the employer's minimum wage obligation because the employer has only paid the employee the minimum wage (cash wage of $2.13 plus the tip credit up to $7.25). A deduction from the employee's tips would be subtracted from the $7.25 minimum wage payment and would bring the employee below the minimum wage.
The NPRM proposed to update the regulations to incorporate the 1974 amendments, the legislative history, subsequent court decisions, and the Department's interpretations. Proposed §§ 531.52, 531.55(a), 531.55(b), and 531.59 eliminated references to employment agreements providing either that tips are the property of the employer or that employees will turn tips over to their employers, and clarified that the availability of the tip credit provided by section 3(m) requires that all tips received must be paid out to tipped employees in accordance with the 1974 amendments. Section 531.55(a), which describes compulsory service charges, also was updated by changing the example of such a charge from 10 percent to 15 percent to reflect more current customary industry practices.
The 1974 amendments also clarified that section 3(m)'s statement that employees must retain their tips does not preclude the practice of tip pooling “among employees who customarily and regularly receive tips.” 29 U.S.C. 203(m). The Department's regulation on the subject provides that “the amounts received and retained by each individual [through a tip pooling arrangement] as his own are counted as his tips for purposes of the Act.” 29 CFR 531.54.
Wage and Hour has interpreted the tip pooling clause more fully in opinion letters and in its Field Operations Handbook (“FOH”). The FOH provides, for example, that a tip pooling arrangement cannot require employees to contribute a greater percentage of their tips to the tip pool than is “customary and reasonable.” FOH section 30d04(b). The agency expanded upon this position, in its opinion letters and in litigation, that “customary and reasonable” equates to 15 percent of an employee's tips or two percent of daily gross sales.
The 1974 amendments also revised another aspect of section 3(m). Prior to the 1974 amendments, section 3(m) of the FLSA provided that an employee could petition the Wage and Hour Administrator to review the tip credit claimed by an employer.
Consistent with the 1974 amendments, the NPRM proposed to delete § 531.7, which permits employees to petition the Wage and Hour Administrator for tip credit review. References to the Administrator's review in § 531.59 also were deleted, and the language was updated to reflect the burden on the employer to prove the amount of the tip credit to which it is entitled.
Numerous commenters addressed the issues relating to tipped employees.
Commenters representing employees expressed concern with several of the Department's proposed revisions. First, a variety of commenters stated that they were opposed to the Department's reference in § 531.52 to the fact that an employer is prohibited from using an employee's tips for any reason other than to make up the difference between the required cash wage paid and the minimum wage where “an employee is being paid wages no more than the minimum wage.”
These commenters pointed out that section 3(m) first was amended in 1966, following a Supreme Court decision that concluded that employers could use employees' tips to satisfy the entire minimum wage. That amendment provided that employers could credit tips toward 50 percent of the minimum wage. After the Wage and Hour Division issued regulations concluding that an employer could still require employees to turn over all their tips, effectively achieving a tip credit equal to 100 percent of the minimum wage, Congress again amended the statute in 1974 to provide that all tips received by an employee must be retained by the employee (except for valid, or bona fide, tip pooling). The commenters noted that the legislative history clarifies that Congress wanted in 1974 “to make clear [its] original * * * intent that an employer could not use the tips of a `tipped employee' to satisfy more than 50 percent of the Act's applicable minimum wage.” S. Rep. No. 93-690, at 43. Congress also made it clear in 1974 that “[a]ll tips received [by tipped employees were to] be paid out to tipped employees.”
Based upon this history, NELP stated that the proposed rule and the preamble language provides “misleading guidance on tips” and “threaten[s] to increase confusion in this already high-violation industry.” NELP asserted that it would be unlawful for an employer to pay a worker a cash wage of $1.00 in excess of the full minimum wage and then withhold $1.00 per hour of a worker's tips, and that the Department “lacks the authority to create this exception to the general rule against tip stealing.” NELP further concluded that the proposed regulations include misleading guidance that is “confusing and encourages abuse that would adversely impact both tipped workers and their employers.” Employers would hire workers for a wage that appeared to exceed the minimum wage, but then would lower their pay back to the minimum wage, and such action would expose “employers to significant liability because it is out of step with the many state laws prohibiting this action.”
NELA similarly stated that the proposed regulations “create confusion with respect to the ownership of tips” because they suggest that if an employer pays a direct (or cash) wage slightly in excess of the minimum wage, it can “thereby obtain unfettered access to its employees' tips.” NELA stated that the confusion “is particularly dangerous given that some courts wrongly permit employers to pocket the tips of employees who are `paid' at least the minimum wage.” Therefore, NELA suggested that the Department should clarify that tips are the property of the employee who receives them and that the tip retention requirement applies even if the employer pays a wage in excess of the minimum wage.
The AFL-CIO similarly commented that the Department's regulatory “language—whether intended by the Department or the result of poor drafting—seems to permit employers to take the employee's tips if they are paid the minimum wage or greater * * * [which] was barred by Congress in 1974.”
The Chamber of Commerce stated that it supported the elimination of the references in current § 531.52 and other regulations to agreements between employers and employees that would make tips the property of the employer or require employees to turn over their
The Department agrees with the analysis in the comments that tips are the property of the employee, and that Congress deliberately amended the FLSA's tip credit provisions in 1974 to clarify that section 3(m) provides the only permitted uses of an employee's tips—through a tip credit or a valid tip pool among only those employees who customarily and regularly receive tips. This has been the Department's longstanding position since the 1974 amendments. The Department has also taken the position since the 1974 amendments that these protections against the use of an employee's tips apply irrespective of whether the employer has elected the tip credit.
The legislative history of the Act, as well as caselaw and opinion letters published shortly after the 1974 amendments, support the Department's position that section 3(m) provides the only permissible uses of an employee's tips regardless of whether a tip credit is taken. As noted
Tips are not wages, and under the 1974 amendments tips must be retained by the employees—which can include employees who are in an appropriate tip pool—and cannot be paid to the employer or otherwise used by the employer to offset his wage obligation, except to the extent permitted by section 3(m).
The Ninth Circuit recently held that section 3(m)'s limitations on an employer's use of an employee's tips apply only when the tip credit is taken, and that when a tip credit is not taken, tips are only the property of the employee absent an agreement to the contrary.
The Ninth Circuit started its analysis in
The Department believes the Ninth Circuit incorrectly concluded that the 1974 amendments to the FLSA did not alter what it characterized as
For example, if an employer is subject to the current Federal minimum wage of $7.25 an hour and its tipped employees receive $10 an hour in tips, an employer who uses the maximum tip credit against its minimum wage obligation has to pay a cash wage of $2.13 and can “use” $5.12 of an employee's tips as a credit toward the rest of the minimum wage payment. The employee thus receives $2.13 in cash wages and keeps all of her $10 in tips, for a total of $12.13.
As noted
The inclusion of the text in proposed § 531.52 reading “Where an employee is being paid wages no more than the minimum wage” was intended to convey the fact that the Department only has authority under the FLSA to enforce,
Commenters representing employees also objected to the Department's proposal in § 531.59(b) and the accompanying preamble providing that employers only have to “inform” employees orally that they will treat tips as satisfying part of the employer's minimum wage obligation, but do not have to “explain” the tip credit or provide anything in writing. For example, NELP commented that the legislative history “makes clear that informing workers is no mere formality, but that the employer must indeed
The AFL-CIO submitted similar comments and stated that the proposed regulation “fails to satisfy the plain language of the statute, which requires not just that the employer `inform' the employee that it is taking a tip credit, but that `the employer [inform the employee] of the provisions of this subsection.' ” NELA also submitted similar comments and stated that, given the increasing importance of employee tips vis-à-vis the minimum wage, the tip credit regulations should ensure the fair operation of the tip credit provisions.
Because the FLSA poster (Publication 1088) provides only a limited description of the tip credit rules and recognizes that “other conditions must also be met,” several commenters suggested that the regulation should set forth a sample notice providing the required explanation in full. NELA, the AFL-CIO, and Bruckner Burch PLLC stated that employers must tell employees not only that the employer will be using the tip credit, but also that a minimum wage is required by law, the amount of the minimum wage, how the tip credit works—that the employer must pay $2.13 and the balance of the full minimum wage required by the Act can come from the tip credit but that the employer must make up the difference if the employee does not receive sufficient tips, that the employee will retain all of his or her tips, and the formula for any tip pooling arrangement. These commenters stated that the Department should not rely on
Epstein Becker commented that the notice provision of section 3(m) does not require an employer to communicate its intent to use the tip credit; rather, it requires an employer to communicate the provisions of the section. Epstein Becker stated that the cases that require an employer to communicate its intent to treat tips as satisfying part of the minimum wage obligation do so without analysis of the statutory language and are incorrect. Epstein Becker further asserted that the information that would be useful to employees and required by section 3(m) is that the employer must supplement an employee's tips if they are insufficient to raise the wage level to the minimum wage, that the cash wage must be at least $2.13, and all tips earned must be retained by the employee absent a valid tip pooling arrangement (and perhaps information regarding the required information as to the tip pool, although this is “difficult to reconcile with the statute's language”). The commenter stated that the proposed regulation, requiring communication of the employer's intent to use the tip credit, does little to advance the purpose of the statute because virtually all employees know their employer intends to pay them a reduced tip wage based on prior work in the industry and any misunderstanding would be resolved with the first paycheck. Finally, Epstein Becker stated that the information on the FLSA poster (Publication 1088) is concise and understandable, and that the poster should contain all information that employers are required to communicate.
The Chamber of Commerce and Littler Mendelson, P.C., agreed with the proposal regarding what an employer must communicate to employees and stated that it can be oral. They stated the proposal is a positive step in clarifying employer obligations and, thus, it should reduce the litigation on this issue by clearly articulating the required content of the notice.
Section 3(m)(2) of the Act provides that the tip credit provisions “shall not apply with respect to any tipped employee unless
As discussed in the preamble to the proposed rule, the courts have disagreed over the level of notice required to “inform” a tipped employee about section 3(m). Thus, in
The Department has concluded that notice of the specific provisions of 3(m) is required to adequately inform the employee of the requirements of the tip credit. To the extent that the Sixth Circuit and other courts have reached different results, the Department notes that those courts generally failed to consider the important legislative developments underlying the FLSA's tip credit provisions and we choose to not be guided by those decisions in this revision of the regulations. Accordingly, based on the express provisions of the statute and the supporting legislative history, the Department agrees with the commenters stating that an employer must inform a tipped employee before it utilizes the tip credit, of the following: (1) The direct cash wage the employer is paying a tipped employee, which can be more than, but cannot be less than, $2.13 per hour; (2) the additional amount the employer is using as a credit against tips received, which cannot exceed the difference between the minimum wage specified in section 6(a)(1) of the FLSA and the actual cash wage paid by the employer to the employee; (3) that the additional amount claimed by the employer on account of tips as the tip credit may not exceed the value of the tips actually received by the employee; (4) that the tip credit shall not apply with respect to any tipped employee unless the employee has been informed of the tip credit provisions of section 3(m) of the Act; and (5) that all tips received by the tipped employee must be retained by the employee except for the pooling of tips among employees who customarily and regularly receive tips. Furthermore, the current FLSA recordkeeping regulation, at 29 CFR 516.28(a)(3), expressly requires that the amount per hour that the employer takes as a tip credit shall be reported to the employee in writing each time it is changed from the amount per hour taken in the preceding week.
Upon careful reexamination of the terms of the statute, its legislative history, and a review of the public comments, the Department is revising its interpretation from the NPRM of the level of explanation that employers must provide when informing tipped employees about the tip credit pursuant to section 3(m). Accordingly, the text of the second and third sentences in proposed § 531.59(b) are combined and revised in the final rule to provide:
* * * Pursuant to section 3(m), an employer is not eligible to take the tip credit unless it has informed its tipped employees in advance of the employer's use of the tip credit of the provisions of section 3(m) of the Act,
Many commenters urged the Department to require employers to provide written notice to its tipped employees that explain section 3(m)'s tip credit provision. Although the Department is not requiring in this rule that the employer “inform” its tipped employees of section 3(m)'s requirements in writing, employers may wish to do so, since a physical document would, if the notice is adequate, permit employers to document that they have met the requirements in section 3(m) and the Department's regulations to “inform” tipped employees of the tip credit provision. Finally, the Final Rule changes the word “bona fide” in the last sentence in proposed § 531.59(b) to “valid”; although both terms in this context refer to a tip pool that includes only those employees who customarily and regularly receive tips, the term “valid” is used in those regulations pertaining to tips for consistency.
Commenters also addressed issues relating to tip pooling. As noted, the NPRM proposed to add two new sentences to § 531.54 (“Tip pooling”) to explain that the FLSA does not set a maximum cap on the percentage of an employee's tips that may be contributed to a valid tip pool, but that an employer must notify its tipped employees of any required tip pool contribution amount. 73 FR 43667 (Jul. 28, 2008). UNITE HERE stated its belief that tip pooling must be voluntary, as indicated by current § 531.54 stating that an employer may redistribute tips to employees “upon some basis to which they have mutually agreed among themselves,” and concluded that an employer should not be able to require employees to participate in a tip pool because the rules the employer created might not be fair. It particularly saw a mandatory pool as a concern if it actually involved mandatory tip splitting, because then the employer could reduce the tipped employee to the minimum wage and use the tips “to augment the cash compensation of other employees, thereby allowing the employer to reduce its own expenditures.” It stated that the requirement that an employee retain all tips “would be swallowed up by the exception” in this situation. Therefore, UNITE HERE objected to the new language in § 531.54 referring to “any required tip pool contribution amount” and stated that employers should not be permitted to require tipping out or tip pooling. It also stated that where tip pooling is voluntary, there is no need for a percentage limitation and the common practice is for employees to contribute all tips. UNITE HERE further commented that, if the Department allows mandatory tip pooling, the regulations should ensure that the pool is valid or “bona fide” such as by clarifying that employers may not retain any of the tips, tips may only go to employees who regularly and customarily receive tips (not employees such as cooks, dishwashers and
NELP objected to the proposed rule's statement that the FLSA does not impose a maximum contribution percentage on tip pools, stating that not having a cap “makes it easier for employers to skim tips for themselves.” It suggested that the rule impose a “customary and reasonable” standard, which it concluded may reasonably be read into the FLSA.
The Chamber of Commerce and Littler Mendelson, P.C. stated that they supported the elimination of the cap on “the amount employers could require tipped employees to `tip out' to other tipped employees,” noting that the rule requires an employer to notify employees of the amount they will be required to contribute to a tip pool. They stated that the tip credit rules ensure that employees will retain a sufficient proportion of their tips to satisfy minimum wage. Accordingly, Littler Mendelson, P.C., concluded that “no employee will be harmed in any way even if a higher percentage of their tips are contributed to a tip pool.”
In response to the comments, the Department has modified the two proposed new sentences at the end of § 531.54 to read:
* * * Section 3(m) does not impose a maximum contribution percentage on valid mandatory tip pools, which can only include those employees who customarily and regularly receive tips. However, an employer must notify its employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each employee ultimately receives, and may not retain any of the employees' tips for any other purpose.
On November 1, 1977, Congress amended section 3(t) of the FLSA, 29 U.S.C. 203(t). Public Law 95-151, § 3(a), 91 Stat. 1245. Section 3(t) of the FLSA defines the phrase “tipped employee.” Prior to the 1977 amendment, the definition encompassed “any employee engaged in an occupation in which he customarily and regularly receives more than $20 a month in tips.” The 1977 amendment raised the threshold in section 3(t) to $30 a month in tips. The proposed rule changed the references in 29 CFR 531.50(b), 531.51, 531.56(a)-(e), 531.57, and 531.58 from $20 to $30. The commenters did not specifically address these technical updates to conform to the statute. Therefore, the final rule adopts the proposed changes to these regulations.
The NPRM proposed to amend § 531.30 to incorporate the Department's longstanding enforcement position regarding the acceptance of meals furnished as a credit towards the minimum wage. A “wage” paid pursuant to section 3(m) of the FLSA may include “the reasonable cost * * * to the employer of furnishing * * * board, lodging, or other facilities * * * customarily furnished by such employer to his employees.” 29 U.S.C. 203(m). “Facilities” include employer-provided meals.
After a number of courts rejected the agency's position on this point with regard to credit for meals, the agency adopted an enforcement position providing that an employer can take a meal credit even if an employee does not voluntarily accept the meal.
Thus, under the agency's current enforcement policy articulated in the FOH, an employer may require an employee to accept a meal provided by the employer as a condition of employment, and may take credit for no more than the actual cost of that meal even if the employee's acceptance is not voluntary. The NPRM proposed to amend 29 CFR 531.30 to reflect previous court decisions and the agency's current enforcement posture on meal credits.
Several commenters addressed this issue. Littler Mendelson, P.C., stated that it supported the proposal providing that an employee does not have to voluntarily accept a meal, stating that this was “not a change in the law” because it merely incorporates the Wage and Hour Division's current policy and court decisions into the regulations.
Commenters representing employees expressed a variety of views. The AFL-CIO stated that it opposed the change because it will make it easier for employers to deduct from workers' pay, “whether or not such meals are adequate, and whether or not the employer is only deducting the reasonable cost of such meals.” It also stated that it disadvantages employees who are unable to eat a meal because of dietary or health restrictions. Therefore, it concluded that the Department should issue guidance on the circumstances when an employer can claim a meal credit. NELP similarly stated that workers should not be required to pay for meals that they cannot eat. NELP stated that workers sometimes are not given an opportunity to eat a mid-shift meal, and yet an employer may automatically make a deduction for that meal. The meal provided may also consist of inferior ingredients or other dishes that cannot be offered for sale.
As explained
The proposed revisions to § 531.30 did not modify or otherwise excuse compliance with other applicable requirements that limit an employer's credit for the reasonable or actual costs to the employer of furnishing the employee with board, lodging, or other facilities (if customarily furnished) under Section 3(m) of the Act (
After careful consideration of the comments, the Department has determined that further study is warranted to assess the extent to which dietary or religious restrictions prevent employees from consuming employer-provided meals and whether adequate time is allowed for the employee to eat. The Department therefore is not adopting the proposal, but may provide guidance on this issue in the future.
Section 7 of the FLSA requires that a covered employee receive compensation for hours worked in excess of 40 in a workweek at a rate not less than one and one-half times the regular rate of pay at which the employee is employed. 29 U.S.C. 207(a). In 1985, subsequent to the U.S. Supreme Court's decision in
Section 7(o) provides a detailed scheme for the accrual and use of compensatory time off. Subsection 7(o)(1) authorizes the provision of compensatory time off in lieu of overtime pay. Subsection 7(o)(2) specifies how a public employer creates a compensatory time off plan. Subsection 7(o)(3) establishes limits for the amount of compensatory time off that an employee may accrue. Section 7(o)(4) provides the requirements for cashing out compensatory time upon an employee's termination.Section 7(o)(5) governs a public employee's use of accrued compensatory leave. That section states:
An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency—(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and (B) who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.
In 1987, after notice and comment, the Department issued final regulations implementing section 7(o) (29 CFR 553.20-.28). Section 553.25 of the regulations implements section 7(o)(5)'s requirements regarding the use of compensatory time off. Section 553.25(c) provides:
(1) Whether a request to use compensatory time has been granted within a “reasonable period” will be determined by considering the customary work practices within the agency based on the facts and circumstances in each case. Such practices include, but are not limited to (a) the normal schedule of work, (b) anticipated peak workloads based on past experience, (c) emergency requirements for staff and services, and (d) the availability of qualified substitute staff.
(2) The use of compensatory time in lieu of cash payment for overtime must be pursuant to some form of agreement or understanding between the employers and the employee (or the representative of the employee) reached prior to the performance of the work. (
When an employer receives a request for compensatory time off, it shall be honored unless to do so would be “unduly disruptive” to the agency's operations. Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off. (
The Department has consistently interpreted its regulations as requiring that an employee's request for compensatory time on a specific date must be granted unless doing so would unduly disrupt the agency's operations. Wage and Hour Opinion Letter 1994 WL 1004861 (Aug. 19, 1994);
Based on these appellate decisions, the NPRM proposed to revise section
Many commenters addressed the compensatory time off issue. NPELRA stated that it “wholeheartedly supports the proposed regulatory change.” It commented that its member agencies have been so concerned about litigation regarding this issue that they have eliminated all FLSA compensatory time off, but that the proposed rules will ensure consistency throughout the country, thereby “reducing any incentives for public employers to eliminate FLSA compensatory time off, which benefits both employers and employees.” NPELRA suggested that the Department revise § 553.25(d) to “state that the term `unduly disrupt' may be defined in the collective bargaining process in the same manner as the term `reasonable period' may be defined,” stating that this would allow the parties to address circumstances unique to their particular organization and would result in less litigation. Finally, NPELRA commented that having to pay an employee overtime to fill in for an employee who is off creates an undue disruption and defeats the purpose of compensatory time off, as the
The IPMA-HR, IMLA, and NLC also commended the Department for the proposed change, stating that it would be “of great assistance to localities that must have adequate staff in order to provide services to citizens.” They also urged the Department to provide that employers are not required to grant compensatory time off if it would mean that the employer would incur overtime expenses. Littler Mendelson, P.C., and SHRM also stated that they supported the proposed change, which appropriately conformed the regulation to the cited appellate court decisions.
Commenters representing employees strongly opposed the proposal.
The AFL-CIO made similar comments, stating that section 7(o)(5) is ambiguous and is best read as requiring an employer to act on an employee's request within a reasonable period after the request is made and to approve the specific day requested absent undue disruption. It noted that the Department had agreed with this interpretation in the current regulation, an
The I.U.P.A. also referred to the legislative history (House Report 99-331 (1985)), which states that compensatory time off “was intended to give `freedom and flexibility' to public employees and `additional options' to employers.” The union therefore stated that the “reasonable period” is better read as referring to the time between the date the employees submit their requests and the dates requested for time off, so that “requests cannot provide such short notice that the employer would be scrambling to find a replacement.” The I.U.P.A. commented that the rationale the Department offered for the change—that the courts uniformly interpreted the statutory language as unambiguous—does not hold up because several district courts have held that the statute is ambiguous and agreed with the Department's current regulation. It stated that if the Department's rationale is correct, then the regulations are unnecessary; it is only if the Department's rationale is incorrect, and a court agrees that the statute is ambiguous, that the regulations will have an impact because the court will defer to the regulations for assistance in interpreting the statute. Therefore, the I.U.P.A. stated that the proposal would place “responsibility squarely on the shoulders of the Department” because a court that found the statute ambiguous would defer to the regulation in denying police officers their chosen days off.
Comments by Members of United States Congress also opposed the Department's proposal, stating that it “will undermine the ability of nearly 20
The IAFF stated that the “proposal is nonsensical in that it essentially eviscerates the purposes for which comp time usage is requested.” The IAFF noted that under the proposed rule an employer would have authority to deny a comp time request for no reason whatsoever, so long as some alternative date within a reasonable period were offered. It also stated that, in many fire departments, employees request time off weeks or months in advance, which aids departments in maintaining adequate staffing by allowing them time to fill vacancies. However, the IAFF stated that the proposal leads to an illogical conclusion, because the more lead time an employee provides, the less likely it is that the employee will receive statutory protection of the right to use the requested time off. The IAFF concluded that, as the Department acknowledged in the NPRM, some fire fighters will simply not accept compensatory time in lieu of cash if the proposal is adopted. “Such an outcome would depart from the plain Congressional intent in enacting this statutory provision. It also would likely impose a substantial financial burden on local government departments that rely on compensatory time, rather than cash overtime * * *”
Since the publication of the NPRM, another appellate court has addressed the issue of whether an employee's specific request to use compensatory time must be granted unless it unduly disrupts the agency's operation. In
Words such as “reasonable” and “undue” are open-ended. They need elaboration, and the relation between these requirements needs explication. Here the agency has added vital details and its work prevails * * * unless it represents an implausible resolution.
The Seventh Circuit's
The NPRM proposed to modify the Department's regulation at 29 CFR 778.114 addressing the fluctuating workweek method of computing overtime compensation for salaried nonexempt employees to permit the payment of non-overtime bonuses and incentives without invalidating the guaranteed salary criterion required for the half-time overtime pay computation. The current regulation provides that an employer may use the fluctuating workweek method for computing half-time overtime compensation if an employee works fluctuating hours from week to week and receives, pursuant to an understanding with the employer, a fixed salary as straight-time compensation “(apart from overtime premiums)” for whatever hours the employee is called upon to work in a workweek, whether few or many. In such cases, an employer satisfies the overtime pay requirement of section 7(a) of the FLSA if it compensates the employee, in addition to the salary amount, at least one-half of the regular rate of pay for the hours worked in excess of 40 hours in each workweek.
Paying employees bonus or premium payments for certain activities such as working undesirable hours is a common and beneficial practice for employees. The NPRM proposed that bona fide bonus or premium payments would not invalidate the fluctuating workweek method of compensation, but that such payments (as well as “overtime premiums”) must be included in the calculation of the regular rate unless they are excluded by FLSA sections 7(e)(1)-(8). The proposal also added an example to § 778.114(b) to illustrate these principles where an employer pays an employee a nightshift differential in addition to a fixed salary.
The Department's view, at that time, was that the proposed modification clarified the rule and was consistent with the Supreme Court's decision in
The NPRM also proposed to increase the numerical values in the examples of overtime computations in § 778.114(b) so the rates of pay would be no less than the current minimum wage. Frank Dean commented that the term “approximately” in two places carried over from the current regulatory language is potentially misleading and confusing and should be eliminated to make it clear that the calculation of statutorily mandated overtime is exacting. Mr. Dean recommended changing one of the weekly hour totals from 44 to 37.5 so that there would be an exact regular rate calculation in each instance, thereby eliminating the need to use “approximately.” We agree with this analysis and have incorporated his suggested revision into the final rule.
Wage and Hour Consulting Services commented that the statement limiting the weekly hours worked in the example to “never in excess of 50 hours in a workweek” in proposed § 778.114(b)(1) was confusing and redundant and should be deleted as unnecessary because it is clearly explained elsewhere in the section that the wage rate of an employee paid under the fluctuating workweek method cannot fall below the minimum wage. This phrase was carried over from the current regulation and we believe that it does not cause confusion and is needed to establish in the example the concept that the employee's regular rate will not fall below the minimum wage. We have, therefore, retained the concept but have made minor wording changes to clarify the example.
Beyond these two minor editorial comments, the comments were sharply divided on the substance of the proposed revisions to the fluctuating workweek provisions. In general, commenters representing employers favored the revisions while commenters representing employees strongly opposed the revisions.
SHRM noted that it is common practice to pay a nonexempt salaried employee a bonus or premium as an incentive for various reasons, such as working less desirable hours. SHRM commented that other payment methods, such as hourly, piece rates, day rates, and job rates, contemplate that an employee may receive a bonus or other premium payments in addition to normal pay and asserted that it was logical and consistent to permit such payments under the fluctuating workweek method of compensation.
The Chamber of Commerce also favored the revisions but sought further clarifications as to when and how bonuses should be included in regular rate calculations, particularly when bonuses (1) cover more than one workweek, (2) are not paid in the same workweek when the work was performed to which the bonus applies, and (3) are not allocable among workweeks in proportion to the amount of bonus actually earned each week. Littler Mendelson, P.C., also supported the proposed revisions, but suggested further revisions to add cross-references to other sections in part 778 regarding how to include bonuses in the regular rate to clarify that all the rules regarding bonuses for nonexempt employees apply equally whether the nonexempt employee is paid by the hour, on a salary basis or under the fluctuating workweek method. Because we believe the principles for including bonuses in the regular rate discussed in other sections of the regulations are clear, we do not find that further clarifications or additional cross-references are necessary in this section.
Fisher & Phillips LLP noted that part 778 is an interpretative rule and similarly noted that § 778.114 “is simply one in a series of
Comments expressing strong opposition to the proposed revisions were mostly based on two primary criticisms. First, that receipt of premium and bonus payments is inconsistent with payment of a fixed salary.
Several commenters also noted that the proposal would permit employers to reduce employees' fixed weekly salaries and shift the bulk of the employees' wages to bonus and premium pay.
The Department has carefully considered all of the comments submitted on this section. While the Department continues to believe that the payment of bonus and premium payments can be beneficial for employees in many other contexts, we have concluded that unless such payments are overtime premiums, they are incompatible with the fluctuating workweek method of computing overtime under section 778.114. As several commenters noted, the proposed regulation could have had the unintended effect of permitting employers to pay a greatly reduced fixed salary and shift a large portion of employees' compensation into bonus and premium payments, potentially resulting in wide disparities in employees' weekly pay depending on the particular hours worked. It is just this type of wide disparity in weekly pay that the fluctuating workweek method was intended to avoid by requiring the payment of a fixed amount as straight time pay for all hours in the workweek, whether few or many. The basis for allowing the half-time overtime premium computation under the fluctuating workweek method is the mutual understanding between the employer and the employee regarding payment of a fixed amount as straight time pay for whatever hours are worked each workweek, regardless of their number. While the example provided in the NPRM of nightshift premiums resulted in a relatively modest change in the employee's straight time pay, the Department now believes that the proposed regulation would have been inconsistent with the requirement of a fixed salary payment set forth by the Supreme Court in
Finally, while the proper use of the fluctuating workweek method of pay results in an employee being paid time and one-half of the employee's regular rate for overtime hours, the Department is cognizant that this method of pay results in a regular rate that diminishes as the workweek increases, which may create an incentive to require employees to work long hours. The Department does not believe that it would be appropriate to expand the use of this method of computing overtime pay beyond the scope of the current regulation. Accordingly, the final rule has been modified from the proposal to restore the current rule requiring payment of the fixed salary amount as the straight time pay for whatever hours are worked in the workweek, that a clear mutual understanding of the parties must exist that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek whatever their number, that the fixed salary amount must be sufficient to provide compensation at a rate not less than the minimum wage, and that the employee must receive extra compensation in addition to the fixed salary for all overtime hours worked at a rate not less than one-half the regular rate of pay. Editorial revisions have been included in the text of the final rule to delete gender-specific references and to update the computation examples to provide wage rates above the minimum wage and the exact calculation of the regular rate. The proposed examples in the NPRM at § 778.114(b)(2) suggesting methods for making supplemental nightshift premium payments as part of the fluctuating workweek methodology for computing half-time overtime pay have been deleted from the final rule.
The current recordkeeping regulations on tipped employees at 29 CFR 516.28 include an outdated parenthetical reference that suggests a limit “(not in excess of 40 percent of the applicable statutory minimum wage)” as the maximum amount of tip credit an employer may claim under the FLSA. 29 CFR 516.28(a)(3). This outdated reference reflected the former provisions of section 3(m) of the FLSA as amended by the 1977 FLSA Amendments, which has since been overtaken by subsequent statutory amendments passed in 1989 and 1996.
The current interpretative regulation on “Hours Worked,” at 29 CFR 785.7 (“Judicial construction”), cites incorrectly to a holding of the U.S. Supreme Court in
This rule does not impose new information collection requirements for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
This final rule is not economically significant within the meaning of Executive Order 12866, or a “major rule” under the Unfunded Mandates Reform Act or Section 801 of the Small Business Regulatory Enforcement Fairness Act.
As discussed previously in this preamble, over the years, Congress has amended the FLSA to refine or to add to exemptions and to clarify the minimum wage and overtime pay requirements. However, in many cases, the Department of Labor did not update the FLSA regulations to reflect these statutory changes. The Department believes that the existing outdated regulatory provisions may cause confusion within the regulated community resulting in inadvertent violations and the costs of corrective compliance measures to remedy them.
The Department has determined that the final rule changes will not result in any additional compliance costs for regulated entities because the current compliance obligations derive from current law and not the outdated regulatory provisions that have been superseded years ago.
The Department is aware that this interpretation appears to be inconsistent with OMB Circular A-4's guidance on the use of analysis baselines, which states: “In some cases, substantial portions of a rule may simply restate statutory requirements that would be self-implementing, even in the absence of the regulatory action. In these cases, you should use a pre-statute baseline” to conduct the regulatory impact analysis. However, as the discussion below indicates, the Department believes the use of a pre-statute baseline would be extremely difficult for statutes enacted a decade or more in the past. Fundamental changes in the economy and labor market (
Moreover, the Department believes the economic impacts due to the statutory changes to the FLSA are typically greatest in the short run and diminish over time. This is due to labor markets determining the most efficient way to adjust to the new requirements, and because the Department believes many of the changes mandated by various revisions to the FLSA are reflective of the natural evolution of the labor market and would have become more common even in the absence of regulatory changes. For example, as nominal wages rise overtime, the marginal impact of a fixed minimum wage provision decreases, since it is less binding on the market. Therefore, the impacts resulting from the promulgation of the final regulations are not likely to be measurable. In fact, the Department anticipates that this final rule will simply enhance the Department's enforcement of, and the public's understanding of, compliance obligations under the FLSA by replacing outdated regulations with updated provisions that reflect current law.
The current FLSA regulations reference the minimum wage in several places, some referring to the 1981 minimum wage of $3.35 and others referring to the 1991 minimum wage of $4.25. To eliminate the current inconsistencies between the FLSA regulations and the statute, the Department revised the regulations to refer to the statutory minimum wage provision rather than a specific minimum wage. Since the final regulations do not include any reference to a specific minimum wage, the Department believes they do not impose the burden of increasing the minimum wage from the levels specified in the current regulations. That burden was imposed by the statutory changes and is not derived from the FLSA regulations. Thus, the Department concludes that the only incremental effect of this final rule on the public from these changes is possibly clearing up some confusion. This differentiates the minimum wage provisions from many other rulemakings in which the Department is given little statutory discretion, but nonetheless is still required to update the CFR.
Sections 2101 through 2103 of Title II of SBJPA, entitled the “Employee Commuting Flexibility Act of 1996,” amended section 4(a) of the Portal Act, 29 U.S.C. 254(a), to state that for travel time involving the employee's use of employer-provided vehicles for commuting at the beginning and end of the workday to be considered noncompensable, the use of the vehicle must be “conducted under an agreement between the employer and the employee or the employee's representative.” The Department believes that since 1996 the labor market has adjusted to this statutory change and that it would be very difficult, if not impossible, to estimate the impact of this amendment. It is likely that as part of their overall compensation package, some employers and their employees have agreed to make the travel time compensable while others have agreed to make it noncompensable. In addition, since this provision simply clarifies that compensability should be subject to an agreement, but does not otherwise restrict the type of agreement employers and employees may reach, the Department believes this provision by its nature does not impose a significant burden on the public. Therefore, the Department concludes that the final rule will have no measurable effect on the public except to possibly clear up some confusion.
In addition, section 2105 of the SBJPA amended the FLSA effective August 20, 1996, by adding section 6(g), 29 U.S.C. 206(g), which provides that “[a]ny employer may pay any employee [who has not attained the age of 20] of such employer, during the first 90 consecutive calendar days after such employee is initially employed by such employer, a wage which is not less than $4.25 an hour.” The Department believes that the labor market has also adjusted to this change during the period since the enactment of the SBJPA. Although youths would obviously want to receive the normal minimum wage rather than the youth wage, some youths will decide to accept the lower youth wage in order to gain experience in the labor market. Similarly, although some employers may want to pay the lower youth wage, some may find compliance with the added requirements associated with the youth wage not to be worth the savings in wages. Thus, the Department concludes that the final rule will have no measurable effect on the public except to possibly clear up some confusion.
Public Law 105-78, 111 Stat. 1467 (Nov. 13, 1997), amended section 13(b)(12) of the FLSA, 29 U.S.C. 213(b)(12), by extending the exemption from overtime pay requirements applicable to workers on water storage and irrigation projects where at least 90
Section 1 of the Amy Somers Volunteers at Food Banks Act, Public Law 105-221, 112 Stat. 1248 (Aug. 7, 1998), amended section 3(e) of the FLSA, 29 U.S.C. 203(e), by adding section (5) to provide that the term “employee” does not include individuals volunteering solely for humanitarian purposes at private non-profit food banks and who receive groceries from those food banks. 29 U.S.C. 203(e)(5). The Department believes that the labor market has also adjusted to this change during the period since the enactment of the amendment. The Department also believes this regulatory change is not likely to cause an impact we would consider significant, since its application is limited and it simply clarifies that certain individuals may be considered volunteers.
In 1999, Congress amended section 3 of the FLSA, 29 U.S.C. 203, by adding section (y) to define “an employee in fire protection activities.” This change in definition impacts fire protection employees who may be covered by the partial overtime exemption allowed by § 7(k) (29 U.S.C. 207(k)) or the overtime exemption for public agencies with fewer than five employees in fire protection activities pursuant to § 13(b)(20) (29 U.S.C. 213(b)(20)). The Department believes that these provisions apply to a relatively small proportion of the labor market, and that the market has adjusted to this change during the period since the enactment of the amendment. Thus, the Department concludes that the final regulatory changes will have no measurable effect on the public except to possibly clear up some confusion by replacing outdated regulations with updated provisions to reflect current law.
The Worker Economic Opportunity Act enacted by Congress on May 18, 2000, amended §§ 7(e) and 7(h) of the FLSA. 29 U.S.C. 207(e), (h). In § 7(e), a new subsection (8) adds “[a]ny value or income derived from employer-provided grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program” meeting particular criteria to the types of remuneration that are excluded from the computation of the regular rate. In § 7(h), the amendment clarifies that the amounts excluded under § 7(e) may not be counted toward the employer's minimum wage requirement under section 6, and that extra compensation excluded pursuant to the new subsection (8) may not be counted toward overtime pay under § 7. The Department believes that the labor markets have adjusted to this statute, which provides additional alternatives for employee compensation, but does not otherwise limit or mandate the overall levels of compensation owed to any category of worker. The final regulatory changes merely help to correct any confusion in this area.
On April 7, 1974, Congress enacted an amendment to section 13(b)(10) of the FLSA, 29 U.S.C. 213(b)(10). Public Law 93-259, 88 Stat. 55 (1974). This amendment added an overtime exemption for salespersons primarily engaged in selling boats (in addition to the pre-existing exemption for sellers of trailers or aircraft). This amendment also eliminated the overtime exemption for partsmen and mechanics servicing trailers or aircraft. The Department believes that these provisions apply to a relatively small proportion of the labor market, and that the labor market has also adjusted to this change during the long period since the enactment of the amendment. Although salespersons primarily engaged in selling boats are not required to be paid time and one-half for the hours worked in excess of 40 in a work week, their overall compensation will be determined by market forces. In some cases, employers and their employees may choose some form of premium overtime pay (even though it is not mandated by the FLSA) while others may choose a higher salary and commissions with no additional compensation for the hours worked in excess of 40 in a week.
Similarly, the Department believes that the market has adjusted to no exemptions for partsmen and mechanics servicing trailers or aircraft. Although there may have been some short run effects related to the statutory change, in the years since enactment of the statute, employers and their employees have adjusted to the overtime requirement. Thus, the Department concludes that the final regulatory changes will have no measurable effect on the public except to possibly clear up some confusion.
On November 1, 1977, Congress amended section 3(t) of the FLSA, 29 U.S.C. 203(t). Public Law 95-151, § 3(a), 91 Stat. 1245. Section 3(t) of the FLSA defines the phrase “tipped employee.” The amendment changed the conditions for taking the tip credit when making wage payments to qualifying tipped employees under the FLSA. Prior to the 1977 amendment, the definition encompassed “any employee engaged in an occupation in which he customarily and regularly receives more than $20 a month in tips.” The 1977 amendment raised the threshold in section 3(t) to $30 a month in tips. Although the mandatory paid wage ($2.13) for tipped employees is below the full minimum wage, these workers must still receive hourly compensation (cash wages plus tips) at least equal to the minimum wage. Moreover, regardless of the minimum wage, if the hourly compensation is too low employers will have trouble finding a sufficient number of workers. The Department believes that the labor market has also adjusted to this change during the period since the enactment of the amendment and that the regulatory changes will have no measurable economic effect on the public except to possibly clear up some confusion.
The Department proposed to amend § 531.30 to reflect that, with the exception of meals, the employee's acceptance of a facility for which the employer seeks to take a 3(m) credit must be voluntary and uncoerced. The Department determined that the
In 1987, the Department issued final regulations implementing a detailed scheme for the accrual and use of compensatory time off under Section 7(o). 29 U.S.C. 207(o). Section 7(o)(5) governs a public employee's use of accrued compensatory leave. That section states:
An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency—(A) who has accrued compensatory time off authorized to be provided under paragraph (1), and (B) who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.
In the NPRM, the Department stated its belief that the proposed changes would eliminate some of the confusion over the use of compensatory time off. The Department stated that it did not believe the proposed changes altered the nature of compensatory time off rights and responsibilities, but recognized that because of uncertainty as to their ability to use compensatory time when requested, some employees might choose not to accrue compensatory time off, thus resulting in some slight economic impacts.
As already discussed in this preamble, since the publication of the NPRM, another appellate court has addressed this issue and concluded that the statutory language is unclear and the Department's regulations requiring an employer to grant the specific time requested unless it would unduly disrupt the agency's operations is reasonable. The Department has therefore reexamined its proposal based on all the appellate decisions and the public comments and has decided not to finalize the proposed revision to section 553.25(c) and (d) and to leave the current regulation unchanged consistent with its longstanding position that employees are entitled to use compensatory time on the date requested absent undue disruption to the agency. Because the proposed changes will not be implemented, the Department does not believe that there will be any measurable economic impact on the public.
The Department proposed to modify the regulation at 29 CFR 778.114 addressing the fluctuating workweek method of computing overtime compensation for salaried nonexempt employees. The proposed regulation provided that bona fide bonus or premium payments would not invalidate the fluctuating workweek method of compensation, but that such payments (as well as “overtime premiums”) must be included in the calculation of the regular rate unless they are excluded by FLSA sections 7(e)(1)-(8). Paying employees bonus or premium payments for certain activities such as working undesirable hours is a common and beneficial practice for both employers and their employees.
For the reasons discussed earlier in this preamble, while the Department continues to believe that the payment of bonus and premium payments can be beneficial for employees in many other contexts, we have concluded that unless such payments are overtime premiums, they are incompatible with the fluctuating workweek method of computing overtime under section 778.114. Therefore the final rule does not implement this proposed provision. Because the proposed changes will not be implemented, the Department does not believe that there will be any measurable economic impact on the public.
The Department does not believe that incorporating these statutory amendments into the FLSA and Portal Act regulations will impose measurable costs on private or public sector entities. The final rule changes should not result in additional compliance costs for regulated entities because employers have been obligated to comply with the underlying statutory provisions for many years. With this action, DOL is merely bringing up-to-date regulatory provisions that were superseded years ago.
Furthermore, because the final rule will not impose any measurable costs on employers, both large and small entities, the Department has determined that it would not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601
This final rule has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501
The Department has reviewed this rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, Aug. 10, 1999). This rule does not have federalism implications as outlined in E.O. 13132. The rule does 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.
The Department has reviewed this rule under the terms of Executive Order 13175 and determined it did not have “tribal implications.” The rule does not have “substantial direct effects on one or more Indian tribes, on the relationship
The Department certifies that this rule will not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
The Department has reviewed this rule under the terms of Executive Order 13045 and determined this action is not subject to E.O. 13045 because it is not economically significant as defined in E.O. 12866 and it does not impact the environmental health or safety risks of children.
The Department has reviewed this rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
The Department has determined that this rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution or use of energy.
The Department has determined that this rule is not subject to Executive Order 12630 because it does not involve implementation of a policy “that has taking implications” or that could impose limitations on private property use.
The Department drafted and reviewed this final rule in accordance with Executive Order 12988 and determined that the rule will not unduly burden the Federal court system. The rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Administrative practice and procedures, Employee benefit plans, Government contracts, Labor, Law enforcement, Minimum wages, Penalties, Wages.
Employment, Recordkeeping, Law enforcement, Labor.
Employment, Labor, Minimum wages, Wages.
Firefighters, Labor, Law enforcement officers, Overtime pay, Wages.
Employment, Overtime pay, Wages.
Compensation, Overtime pay.
Agriculture, Irrigation, Overtime pay.
Compensation, Hours of work.
Compensation, Minimum wages, Overtime pay.
Compensation, Hours of work.
For the reasons set forth above, the Department amends Title 29, Parts 4, 516, 531, 553, 778, 779, 780, 785, 786, and 790 of the Code of Federal Regulations as follows:
41 U.S.C. 351
* * * The general rule under that Act provides, when determining the wage an employer is required to pay a tipped employee, the maximum allowable hourly tip credit is limited to the difference between $2.13 and the applicable minimum wage specified in section 6(a)(1) of that Act. (
Sec. 11, 52 Stat. 1066, as amended, 29 U.S.C. 211. Section 516.28 also issued under Pub. L. 104-188, § 2105(b); Pub. L. 110-28, 121 Stat. 112. Section 516.33 also issued under 52 Stat. 1060, as amended; 29 U.S.C. 201
(a) * * *
(3) Amount by which the wages of each tipped employee have been deemed to be increased by tips as determined by the employer (not in excess of the difference between $2.13 and the applicable minimum wage specified in section 6(a)(1) of the Act). * * *
Sec. 3(m), 52 Stat. 1060; sec. 2, 75 Stat. 65; sec. 101, 80 Stat. 830; sec. 29(B), 88 Stat. 55, Pub. L. 93-259; Pub. L. 95-151, 29 U.S.C. 203(m) and (t); Pub. L. 104-188, § 2105(b); Pub. L. 110-28, 121 Stat. 112.
(a) When no overtime is worked by the employees, section 3(m) and this part apply only to the applicable minimum wage for all hours worked. To illustrate, where an employee works 40 hours a week at a cash wage rate of at least the applicable minimum wage and is paid that amount free and clear at the end of the workweek, and in addition is furnished facilities, no consideration need be given to the question of whether such facilities meet the requirements of section 3(m) and this part, since the employee has received in cash the applicable minimum wage for all hours worked. Similarly, where an employee is employed at a rate in excess of the applicable minimum wage and during a particular workweek works 40 hours for which the employee receives at least the minimum wage free and clear, the employer having deducted from wages for facilities furnished, whether such deduction meets the requirement of section 3(m) and subpart B of this part need not be considered, since the employee is still receiving, after the deduction has been made, a cash wage of at least the minimum wage for each hour worked. Deductions for board, lodging, or other facilities may be made in nonovertime workweeks even if they reduce the cash wage below the minimum wage, provided the prices charged do not exceed the “reasonable cost” of such facilities. When such items are furnished the employee at a profit, the deductions from wages in weeks in which no overtime is worked are considered to be illegal only to the extent that the profit reduces the wage (which includes the “reasonable cost” of the facilities) below the required minimum wage. Facilities must be measured by the requirements of section 3(m) and this part to determine if the employee has received the applicable minimum wage in cash or in facilities which may be legitimately included in “wages” payable under the Act.
(a) Section 7 requires that the employee receive compensation for overtime hours at “a rate of not less than one and one-half times the regular rate at which he is employed.” When overtime is worked by an employee who receives the whole or part of his or her wage in facilities and it becomes necessary to determine the portion of wages represented by facilities, all such facilities must be measured by the requirements of section 3(m) and subpart B of this part. It is the Administrator's opinion that deductions may be made, however, on the same basis in an overtime workweek as in nonovertime workweeks (
(b) Where deductions are made from the stipulated wage of an employee, the regular rate of pay is arrived at on the basis of the stipulated wage before any deductions have been made. Where board, lodging, or other facilities are customarily furnished as additions to a cash wage, the reasonable cost of the facilities to the employer must be considered as part of the employee's regular rate of pay.
(a) With respect to tipped employees, section 3(m) provides that, in determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to—
(1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996 [
(2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of this title.
(b) “Tipped employee” is defined in section 3(t) of the Act as follows:
* * * Whether a tip is to be given, and its amount, are matters determined solely by the customer, who has the right to determine who shall be the recipient of the gratuity. Tips are the property of the employee whether or not the employer has taken a tip credit under section 3(m) of the FLSA. The employer is prohibited from using an employee's tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted in section 3(m): As a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool. Only tips actually received by an employee as money belonging to the employee may be counted in determining whether the person is a “tipped employee” within the meaning of the Act and in applying the provisions of section 3(m) which govern wage credits for tips.
* * * Section 3(m) does not impose a maximum contribution percentage on valid mandatory tip pools, which can only include those employees who customarily and regularly receive tips. However, an employer must notify its employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each employee ultimately receives, and may not retain any of the employees' tips for any other purpose.
(a) A compulsory charge for service, such as 15 percent of the amount of the bill, imposed on a customer by an employer's establishment, is not a tip and, even if distributed by the employer to its employees, cannot be counted as a tip received in applying the provisions of section 3(m) and 3(t). Similarly, where negotiations between a hotel and a customer for banquet facilities include amounts for distribution to employees of the hotel, the amounts so distributed are not counted as tips received.
(b) As stated above, service charges and other similar sums which become part of the employer's gross receipts are not tips for the purposes of the Act. Where such sums are distributed by the employer to its employees, however, they may be used in their entirety to satisfy the monetary requirements of the Act.
(d) * * * It does not govern or limit the determination of the appropriate amount of wage credit under section 3(m) that may be taken for tips under section 6(a)(1) (tip credit equals the difference between the minimum wage required by section 6(a)(1) and $2.13 per hour).
(a) In determining compliance with the wage payment requirements of the Act, under the provisions of section 3(m) the amount paid to a tipped employee by an employer is increased on account of tips by an amount equal to the formula set forth in the statute (minimum wage required by section 6(a)(1) of the Act minus $2.13), provided that the employer satisfies all the requirements of section 3(m). This tip credit is in addition to any credit for board, lodging, or other facilities which may be allowable under section 3(m).
(b) As indicated in § 531.51, the tip credit may be taken only for hours worked by the employee in an occupation in which the employee qualifies as a “tipped employee.” Pursuant to section 3(m), an employer is not eligible to take the tip credit unless it has informed its tipped employees in advance of the employer's use of the tip credit of the provisions of section 3(m) of the Act,
When overtime is worked by a tipped employee who is subject to the overtime pay provisions of the Act, the employee's regular rate of pay is determined by dividing the employee's total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by the employee in that workweek for which such compensation was paid. * * * In accordance with section 3(m), a tipped employee's regular rate of pay includes the amount of tip credit taken by the employer per hour (not in excess of the minimum wage required by section 6(a)(1) minus $2.13), the reasonable cost or fair value of any facilities furnished to the employee by the employer, as authorized under section 3(m) and this part 531, and the cash wages including commissions and certain bonuses paid by the employer. * * *
Secs. 1-19, 52 Stat. 1060, as amended (29 U.S.C. 201-219); Pub. L. 99-150, 99 Stat. 787 (29 U.S.C. 203, 207, 211). Pub. L. 106-151, 113 Stat. 1731 (29 U.S.C. 203(y)).
(a) As used in sections 7(k) and 13(b)(20) of the Act, the term “any employee * * * in fire protection activities” refers to “an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.”
(a) Employees engaged in law enforcement activities as described in § 553.211 may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their law enforcement activities. The performance of such nonexempt work will not defeat either the section 13(b)(20) or 7(k) exemptions unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than
(b) * * * In addition, the hours of work in the different capacity need not be counted as hours worked for overtime purposes on the regular job, nor are such hours counted in determining the 20 percent tolerance for nonexempt work for law enforcement personnel discussed in paragraph (a) of this section.
52 Stat. 1060, as amended; 29 U.S.C. 201
(a)
(b)
(a)
(b)
(a)
(b) * * * The regular rate of an employee who is paid a regular monthly salary of $1,560, or a regular semimonthly salary of $780 for 40 hours a week, is thus found to be $9 per hour. * * *
(b) The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose total weekly hours of work never exceed 50 hours in a workweek, and whose salary of $600 a week is paid with the understanding that it constitutes the employee's compensation, except for overtime
(a) * * *
(8) Any value or income derived from employer-provided grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program which is not otherwise excludable under any of paragraphs (a)(1) through (a)(7) of this section if—
(i) Grants are made pursuant to a program, the terms and conditions of which are communicated to participating employees either at the beginning of the employee's participation in the program or at the time of the grant;
(ii) In the case of stock options and stock appreciation rights, the grant or right cannot be exercisable for a period of at least 6 months after the time of grant (except that grants or rights may become exercisable because of an employee's death, disability, retirement, or a change in corporate ownership, or other circumstances permitted by regulation), and the exercise price is at least 85 percent of the fair market value of the stock at the time of grant;
(iii) Exercise of any grant or right is voluntary; and
(iv) Any determinations regarding the award of, and the amount of, employer-provided grants or rights that are based on performance are—
(A) Made based upon meeting previously established performance criteria (which may include hours of work, efficiency, or productivity) of any business unit consisting of at least 10 employees or of a facility, except that, any determinations may be based on length of service or minimum schedule of hours or days of work; or
(B) Made based upon the past performance (which may include any criteria) of one or more employees in a given period so long as the determination is in the sole discretion of the employer and not pursuant to any prior contract.
(b)
(1) Except as provided in paragraph (2), sums excluded from the regular rate pursuant to subsection (e) shall not be creditable toward wages required under section 6 or overtime compensation required under this section.
(2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) of this section shall be creditable toward overtime compensation payable pursuant to this section.
Section 7(e) of the Act requires the inclusion in the regular rate of all remuneration for employment except eight specified types of payments. * * *
Secs. 1-19, 52 Stat. 1060, as amended; 75 Stat. 65; Sec. 29(B), Pub. L. 93-259, 88 Stat. 55; 29 U.S.C. 201-219.
(a) * * * Section 13(b)(10) is applicable not only to automobile, truck, and farm implement dealers but also to dealers in trailers, boats, and aircraft. * * *
(a)
(b) * * *
(1) * * *
(ii) The establishment must be primarily engaged in the business of selling automobiles, trucks, or farm implements to the ultimate purchaser for section 13(b)(10)(A) to apply. If these tests are met by an establishment the exemption will be available for salesmen, partsmen and mechanics, employed by the establishment, who are primarily engaged during the work week in the selling or servicing of the named items. Likewise, the establishment must be primarily engaged in the business of selling trailers, boats, or aircraft to the ultimate purchaser for the section 13(b)(10)(B) exemption to be available for salesmen employed by the establishment who are primarily engaged during the work week in selling these named items. An explanation of the term “employed by” is contained in §§ 779.307 through 779.311. The exemption is intended to apply to employment by such an establishment of the specified categories of employees even if they work in physically separate buildings or areas, or even if, though working in the principal building of the dealership, their work relates to the work of physically separate buildings or areas, so long as they are employed in a department which is functionally operated as part of the dealership.
(2) This exemption, unlike the former exemption in section 13(a)(19) of the Act prior to the 1966 amendments, is not limited to dealerships that qualify as retail or service establishments nor is it limited to establishments selling automobiles, trucks, and farm implements, but also includes dealers in trailers, boats, and aircraft.
(c)
(2) As used in section 13(b)(10)(A), a partsman is any employee employed for the purpose of and primarily engaged in requisitioning, stocking, and dispensing parts.
(3) As used in section 13(b)(10)(A), a mechanic is any employee primarily engaged in doing mechanical work (such as get ready mechanics, automotive, truck, or farm implement mechanics, used car reconditioning mechanics, and wrecker mechanics) in the servicing of an automobile, truck or farm implement for its use and operation as such. This includes mechanical work required for safe operation, as an automobile, truck, or farm implement. The term does not include employees primarily performing such nonmechanical work as washing, cleaning, painting, polishing, tire changing, installing seat covers, dispatching, lubricating, or other nonmechanical work. Wrecker mechanic means a service department mechanic who goes out on a tow or wrecking truck to perform mechanical servicing or repairing of a customer's vehicle away from the shop, or to bring the vehicle back to the shop for repair service. A tow or wrecker truck driver or helper who primarily performs nonmechanical repair work is not exempt.
Secs. 1-19, 52 Stat. 1060, as amended; 75 Stat. 65; 29 U.S.C. 201-219. Pub. L. 105-78, 111 Stat. 1467.
Section 13(b)(12) of the Fair Labor Standards Act exempts from the overtime provisions of section 7 any employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, or operated on a sharecrop basis, and which are used exclusively for supply and storing of water, at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year.
(a) Section 13(b)(12) of the Act contains the same wording exempting any employee employed in agriculture as did section 13(a)(6) prior to the 1966 amendments. * * *
(b) In addition to exempting employees engaged in agriculture, section 13(b)(12) also exempts from the overtime provisions of the Act employees employed in specified irrigation activities. The effect of the 1997 amendment to section 13(b)(12) is to expand the overtime exemption for any employee employed in specified irrigation activities used for supply and storing of water for agricultural purposes by substituting “water, at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year” for the prior requirement that all the water be used for agricultural purposes. Prior to the 1966 amendments employees employed in specified irrigation activities were exempt from the minimum wage and overtime pay requirements of the Act.
This exemption applies only to the overtime provisions of the Act and does not affect the minimum wage, child labor, recordkeeping, and other requirements of the Act.
Section 13(b)(12) requires for exemption of irrigation work that the ditches, canals, reservoirs, or waterways in connection with which the employee's work is done be “used exclusively for supply and storing of water at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year.” If a water supplier supplies water of which more than 10 percent is used for purposes other than “agricultural purposes” during the preceding calendar year, the exemption would not apply. For example, the exemption would not apply where more than 10 percent of the water supplier's water is delivered to a municipality to be used for general, domestic, and commercial purposes. Water used for watering livestock raised by a farmer is “for agricultural purposes.”
52 Stat. 1060; 29 U.S.C. 201-219; 29 U.S.C. 254. Pub. L. 104-188, 100 Stat. 1755.
The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” * * *
(a) * * * The use of an employer's vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered “principal” activities when meeting the following conditions: The use of the employer's vehicle for travel is within the normal commuting area for
* * * Section 4(a) further provides that the use of an employer's vehicle for travel by an employee and activities that are incidental to the use of such vehicle for commuting are not considered principal activities when the use of such vehicle is within the normal commuting area for the employer's business or establishment and is subject to an agreement on the part of the employer and the employee or the representative of such employee. * * *
(a) * * *
(2) * * * For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
52 Stat. 1060, as amended; 29 U.S.C. 201-219. Pub. L. 104-188, 100 Stat. 1755. Pub. L. 105-221, 112 Stat. 1248, 29 U.S.C. 203(e).
Section 6(g) of the Fair Labor Standards Act allows any employer to pay any employee who has not attained the age of 20 years a wage of not less than $4.25 an hour during the first 90 consecutive calendar days after such employee is initially employed by such employer. For the purposes of hiring workers at this wage, no employer may take any action to displace employees, including partial displacements such as reducing hours, wages, or employment benefits. Any employer that violates these provisions is considered to have violated section 15(a)(3) of the Act.
Section 3(e)(5) of the Fair Labor Standards Act excludes from the definition of the term “employee” individuals who volunteer their services solely for humanitarian purposes at private non-profit food banks and who receive groceries from the food banks.
52 Stat. 1060, as amended; 110 Stat. 1755; 29 U.S.C. 201-219; 29 U.S.C. 254.
(a) * * *
(2) * * * For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.