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Department of Energy.
Final rule.
This final rule establishes standards and procedures by which the Department of Energy (DOE) may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders. This rule also sets new standards and procedures by which DOE may allocate materials, services and facilities to promote the national defense. DOE is publishing this rule to comply with a requirement of the Defense Production Act Reauthorization of 2009 to publish regulations providing standards and procedures for prioritization of contracts and orders and for allocation of materials, services and facilities to promote the national defense.
This rule is effective on July 11, 2011.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, Room 1E-256, 1000 Independence Avenue, SW., Washington, DC 20585 and to Christine Kymn at
Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
This rule expands upon 10 CFR part 216, the Department of Energy's (DOE) Energy Priorities and Allocations System (EPAS) regulations.
10 CFR Part 216 implements DOE's administration of priorities and allocations actions in order to maximize domestic energy supplies pursuant to its authority under Section 101(c) of the Defense Production Act (50 U.S.C. app. Section 2071
On September 30, 2009, the Defense Production Act Reauthorization of 2009 (Pub. L. 111-67, 123 Stat. 2006, September 30, 2009) (DPAR) was enacted. The DPAR requires all agencies to which the President has delegated priorities and allocations authority under Title I of the DPA to publish final rules establishing standards and procedures by which that authority will be used to promote the national defense in both emergency and nonemergency situations. The DPAR also requires all such agencies to consult “as appropriate and to the extent practicable to develop a consistent and unified Federal priorities and allocations system.” (123 Stat. 2006, at 2009). This rule is one of several rules to be published to implement the provisions of the DPAR. The final rules of the agencies with DPAR authorities, which are the Departments of Commerce, Energy, Transportation, Health and Human Services, Defense, and Agriculture, will comprise the Federal Priorities and Allocations System.
DOE published its proposed EPAS rule on July 16, 2010 (75 FR 41405). DOE solicited public comment on the proposed rule, but no comments were received. DOE now publishes this final rule pursuant to the provision of the DPAR noted above. DOE believes that its existing rules at 10 CFR part 216 satisfy the DPAR's requirement that agencies have standards and procedures in place to implement the DPA's 101(c) authorities. However, in the interest of promoting a unified priorities and allocations system, and to implement DOE's DPA authorities other than those set forth in section 101(c), DOE sets forth this EPAS rule. DOE's EPAS provisions are consistent with the Federal Priorities and Allocations System regulations being issued by other agencies. The specific proposals in this rule are more fully described below.
Subpart A sets forth the purpose of the regulation.
Section 217.1 states the purpose of the EPAS, which provides guidance and procedures for use of the DPA priorities and allocations authority (other than the authorities set forth in section 101(c)) with respect to all forms of energy necessary or appropriate to promote the national defense.
Section 217.2 provides an overview of the EPAS program. This section describes briefly all aspects of the EPAS, including the resource jurisdiction of other agencies delegated priorities and allocations authority under the DPA.
The “Definitions” section appears in section 217.20 in Subpart B and provides definitions for the relevant regulatory terms.
Subpart C, titled “Placement of Rated Orders,” reflects the fact that the subpart
Section 217.30, “Delegation of Authority,” describes fully the President's delegations to the Department of Energy. It also describes the items subject to DOE's jurisdiction and notes that the Department of Commerce has delegated certain authorities to DOE. This provision facilitates public understanding of the role that each delegate agency plays in the overall priorities and allocations system.
Section 217.31, “Priority ratings,” describes the different levels of priority and program symbols used when rating an order.
Section 217.32, “Elements of a rated order,” describes in detail what each rated order must include, consisting of the appropriate priority rating, delivery date information, signatures and required language.
Language in section 217.33, “Acceptance and rejection of rated orders,” details when orders placed by DOE may or must be accepted or rejected, and what the procedures are for both, including customer notification requirements and certain exceptions for emergency preparedness conditions.
Specifically, persons must accept or reject rated orders for emergency response-related approved programs within two days of receipt of the order. DOE establishes the shorter time limit in which the recipient must respond to a rated order issued in connection with an emergency response related program because such programs would involve disaster assistance, emergency response or similar activities. DOE believes that the exigent circumstances inherent in such activities justify requiring a shorter response time.
Section 217.34, “Preferential scheduling,” details procedures in cases where a person receives two or more conflicting rated orders. If a person is unable to resolve such a conflict, this section refers them to special priorities assistance as provided in sections 217.40 through 217.44.
Language in section 217.35, “Extension of priority ratings,” requires a person to use rated orders with suppliers to obtain items or services needed to fill a rated order. This allows the priority rating to “extend” from contractor to subcontractor to supplier throughout the entire procurement chain.
Section 217.36, “Changes or cancellations of priority ratings and rated orders,” provides procedures for changing or cancelling a rated order, both by DOE or other persons who placed the order.
Section 217.37, “Use of rated orders,” lists what items must be rated. It also introduces the use of certain program identification symbols used when rated orders may be combined, and details the procedures for combining two or more rated orders, as well as rated and unrated orders.
Section 217.38, “Limitations on placing rated orders,” prohibits the use of rated orders in a list of specific circumstances. This section also specifically excludes the use of rated orders for resources within the resource jurisdiction of agencies other than DOE with DPA priorities and allocations authority.
Subpart D “Special Priorities Assistance” describes instances in which DOE can provide assistance in resolving matters related to priority rated contracts and orders.
Section 217.40 “General provisions” illustrates when and how DOE can provide special priorities assistance, and provides specific DOE points of contact and the form to be used for requesting such assistance. Special priorities assistance may generally be requested for any reason.
Section 217.41, “Requests for priority rating authority,” directs persons to the Department of Energy or Department of Commerce (DOC), as appropriate, to request priority rating authority in the event a rated order is likely to be delayed. This section also identifies circumstances in which DOE or DOC, as appropriate, may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract, and lists factors the agencies will consider in deciding whether to grant this authority.
Section 217.42, “Examples of assistance,” provides a number of examples of when special priorities assistance may be provided, although it may generally be provided for any reason.
Section 217.43 lists the criteria for granting assistance, and section 217.44 lists instances in which assistance may not be provided (
Subpart E, “Allocation Actions,” provides the public with detailed information on the procedures governing allocations actions. Allocations actions would most likely be used in extreme circumstances, such as in response to a national emergency.
Sections 217.50 through 217.52 describe allocations and when and how allocation orders may be used. Specifically, allocation orders may be used only if priorities authority would not provide a sufficient supply of material, services or facilities for national defense requirements, or when use of priorities authority would cause a severe and prolonged disruption in the supply of resources available to support normal U.S. economic activities. Allocation orders would not be used to ration materials or services at the retail level. Allocation orders will be distributed equitably among the suppliers of the resource(s) being allocated and will not require any person to relinquish a disproportionate share of the civilian market. The standards set forth in sections 217.50 through 217.52 to ensure that allocation orders will be used only in situations where the circumstances justify such orders.
Section 217.53 describes the three types of allocation orders that DOE might issue, which are a set-aside, an allocation directive, and an allotment. A set-aside is an official action that requires a person to reserve resource capacity in anticipation of receipt of rated orders. An allocation directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions (an allocation directive can require a person to stop or reduce production of an item, prohibit the use of selected items, divert supply of one type of product to another, or to supply a specific quantity, size, shape, and type of an item within a specific time period). An allotment is an official action that specifies the maximum quantity of an item authorized for use in a specific program or application. DOE establishes these three types of allocation orders because it believes that, collectively they describe the types of actions that might be taken in any situation in which allocation is justified.
Section 217.54, “Elements of an allocation order,” sets forth the minimum elements of an allocation order. Those elements are:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this regulation and that the
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System (10 CFR part 217).
DOE establishes these elements because it believes that they provide a proper balance between the need for standards to permit the public to recognize and understand an allocation order if one is issued, and the expectation that any actual allocation orders will have to be tailored to meet unforeseeable circumstances. The language of section 217.54 does not preclude DOE from including additional information in an allocation order if circumstances warrant doing so.
Section 217.55, “Mandatory acceptance of allocation orders,” requires that an allocation order must be accepted if a person is capable of fulfilling the order. If a person is unable to comply fully with the required actions specific in an allocation order, the person must notify DOE immediately, explain the extent to which compliance is possible, and give reasons why full compliance is not possible. This section also states that a person may not discriminate against an allocation order in any manner, such as by charging higher prices or imposing terms and conditions different than what the person imposed on contracts or orders for the same resource(s) that were received prior to receiving the allocation order. DOE establishes section 217.55 to clarify that the limited circumstances and emergency situations that trigger issuance of an allocation order require immediate response to address the situation in an expedient fashion.
Section 217.56, “Changes or cancellations of an allocation order” provides that an allocation order may be changed or cancelled by the Department of Energy.
Subpart F, “Official Actions,” provides the specific official actions the DOE may take to implement the provisions of this regulation. These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
Section 217.61, “Rating Authorizations,” defines a rating authorization as an official action granting specific priority rating authority, and refers persons to section 217.21 to request such priority rating authority.
Section 217.62, “Directives,” defines a directive as an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. This section details directive compliance for the public.
Section 217.63, “Letters and Memoranda of Understanding,” defines a letter or memorandum of understanding as an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties, and explains its use.
Subpart G, “Compliance,” provides DOE authority to enforce the administration of the DPA and other applicable statutes, this regulation, or an official action. This subpart provides that willful violations of the provisions of title I or section 705 of the DPA, this regulation, or a DOE official action, are criminal acts, punishable as provided in the DPA, and as set forth below in section 217.74.
Section 217.71, “Audits and investigations,” details the procedures for official examinations of books, records, documents, and other writings and information to ensure that the provisions of the DPA and other applicable statutes, this regulation, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this regulation.
Section 217.72, “Compulsory process,” provides that if a person refuses to permit a duly authorized DOE representative to have access to necessary information, DOE may seek the institution of appropriate legal action, including ex parte application for an inspection warrant, in any forum of appropriate jurisdiction.
Sections 217.73 and 217.74 both provide procedures for notification of failure to comply with the DPA, these regulations, or DOE official actions, and the violations, penalties and remedies that may result.
Section 217.75, “Compliance Conflicts,” requires that persons immediately contact DOE should compliance with the DPA, these regulations, or an official action prevent a person from filling a rated order or from complying with another provision of the DPA and other applicable statutes, this regulation, or an official action.
Section 217.80, “Adjustments, Exceptions, and Appeals,” sets forth the procedures to request an adjustment or exception to the provisions of these regulations on the grounds of exceptional hardship or compliance would be contrary to the intent of the DPA. These requests must be submitted in writing to the DOE contact provided in this section.
Section 217.81, “Appeals,” provides the procedures, timing and contact information for appealing a decision made on a request for relief in the previous section.
Subpart I, “Miscellaneous Provisions,” addresses a number of remaining issues, including protection against claims, records and reports, applicability issues, and communications.
Section 217.90, “Protection against claims,” provides that a person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any part of this regulation, or an official action.
Section 217.91, “Records and reports,” requires that persons make and preserve for at least three years, accurate and complete records of any transaction covered by this regulation or an official action. Various requirements and procedures regarding such records are provided in this section. The confidentiality provisions of the DPA governing the submission of information pursuant to the DPA and these regulations are also set forth.
Section 217.92, “Applicability of this regulation and official actions,” provides the jurisdictional applicability of this regulation and official actions.
Section 217.93, “Communications,” provides a DOE point of contact for all communications regarding this regulation.
DOE received no comments on its proposed EPAS regulation. DOE finalizes its proposed regulation without change.
This rule has been determined to be significant for purposes of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003.
Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, a small business, as described in the Small Business Administration's Table of Small Business Size Standards Matched to North American Industry Classification System Codes (August 2008 Edition), has a maximum annual revenue of $ 33.5 million and a maximum of 1,500 employees (for some business categories, these number are lower). A small governmental jurisdiction is a government of a city, town, school district or special district with a population of less than 50,000. A small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule sets criteria under which DOE (or agencies to which DOE delegates authority) will authorize prioritization of certain orders or contracts as well as criteria under which DOE would issue orders allocating resources or production facilities. Because the rule affects commercial transactions, DOE believes that small organizations and small governmental jurisdictions are unlikely to be affected by this rule. To date, DOE has not exercised its existing allocations authority. As such, DOE has no basis on which to estimate the number of small businesses that may be affected by this rule.
The final rule has two principle components: Prioritization and allocation. Under prioritization, DOE or its Delegate Agency designates certain orders as one of two possible priority levels. Once so designated, such orders are referred to as “rated orders.” The recipient of a rated order must give it priority over an unrated order or an order with a lower priority rating. A recipient of a rated order may place orders at the same priority level with suppliers and subcontractors for supplies and services necessary to fulfill the recipient's rated order and the suppliers and subcontractors must treat the request from the rated order recipient as a rated order with the same priority level as the original rated order. The rule does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rule provides a defense from any liability for damages or penalties for actions taken in, or inactions required for, compliance with the rule.
Although rated orders could require a firm to fill one order prior to filling another, they would not necessarily require a reduction in the total volume of orders. The regulations would also not require the recipient of a rated order to reduce prices or provide rated orders with more favorable terms than a similar non-rated order. Under these circumstances, the economic effects on the rated order recipient of substituting one order for another are likely to be mutually offsetting, resulting in no net economic impact.
Allocations could be used to control the general distribution of materials or services in the civilian market. Specific allocation actions that DOE might take are as follows:
Set-aside: An official action that requires a person to reserve resource capacity in anticipation of receipt of rated orders.
Allocations directive: An official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. An allocation directive can require a person to stop or reduce production of an item, prohibit the use of selected items, or divert supply of one type of product to another, or to supply a specific quantity, size, shape, and type of an item within a specific time period.
Allotment: An official action that specifies the maximum quantity of an item authorized for use in a specific program or application.
Any allocation actions taken by DOE would also have to comply with Section 701(e) of the DPA (50 U.S.C. app. section 2151(e)), which provides that “small business concerns shall be accorded, to the extent practicable, a fair share of the such material [including services] in proportion to the share received by such business concerns under normal conditions, giving such special consideration as may be possible to emerging business concerns.” Such a provision may even provide an economic benefit to small businesses.
Although DOE cannot determine precisely the number of small entities that would be affected by this rule, DOE believes that the overall impact on such entities would not be significant. In most instances, rated contracts would be fulfilled in addition to other (unrated) contracts and could actually increase the total amount of business of the firm that receives a rated contract.
Because allocations can be imposed only after an agency determination confirmed by the President, and because DOE has not yet used its allocations authority that has existed since passage of the Defense Production Act in 1950, one can expect allocations will be ordered only in particular circumstances. However, DOE believes that the requirement for a Presidential determination and the provisions of section 701 of the DPA indicate that any
DOE received no comments on the certification or economic impacts of the rule at the proposed rule stage.
Therefore, for the reasons set forth above, the Assistant General Counsel for Legislation, Regulation, and Energy Efficiency certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 1910-5159. This requirement has been submitted to OMB for approval. Public reporting burden for submission of Form DOE F 544 (05-11) is estimated to average 30 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 on this burden estimate or any other aspects of the collection of information to Dr. Kenneth Friedman (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. DOE determined that today's rule, which sets forth procedures for compliance with the Defense Production Act (separate from the procedures set forth at 10 CFR part 216), is not a “significant energy action” within the meaning of Executive Order 13211. The Administrator of the Office of Information and Regulatory Affairs at OMB also did not designate this action as a significant energy action. Therefore, DOE concludes that today's rule is not a significant energy action within the meaning of Executive Order 13211 and has not prepared a Statement of Energy Effects.
DOE reviewed this rule pursuant to Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DOE also reviewed this rule pursuant to DOE's statement of policy describing the intergovernmental consultation process it will follow in the development of regulations that have federalism implications, 65 FR 13735 (March 14, 2000). DOE determined that the rule 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.
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2). DOE also will submit the supporting analyses to the Comptroller General in the U.S. Government Accountability Office (GAO) and make them available to each House of Congress.
The Secretary of Energy has approved publication of this notice of final rulemaking.
Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials.
For the reasons stated in the preamble, DOE amends chapter II of title 10 of the Code of Federal Regulations, by adding a new part 217 to read as set forth below:
Defense Production Act of 1950, as amended, 50 U.S.C. App. 2061-2171; E.O. 12919, as amended, (59 FR 29525, June 7, 1994).
This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; health resources; all forms of civil transportation (49 CFR Part 33); water resources; and all other materials, services, and facilities, including construction materials in the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216 describe and establish the procedures to be used by DOE in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended.
(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and
(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities.
Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195
The following definitions pertain to all sections of this part:
(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems,
(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).
(1) A natural disaster; or
(2) An accidental or human-caused event.
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States; and
(4) To recover from a terrorist attack in the United States.
(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.
(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.
(3) “Operating supplies” are any resources carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.
(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.
(3) Natural resources such as oil and gas.
(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil transportation; or
(4) Other national defense programs and activities.
(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy.
(a) Levels of priority.
(1) There are two levels of priority established by the Energy Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.
(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)
(b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of currently approved programs and their identification symbols are listed in Schedule 1, set forth as an Appendix to 15 CFR part 700. For example, DO-F3 identifies a domestic energy construction program. Additional programs may be approved under the procedures of E.O. 12919 at any time. Program identification symbols do not connote any priority.
(c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol, such as F1, F2, or F3. Thus, a contract for a domestic energy construction program will contain a DO-F3 or DX-F3 priority rating.
Each rated order must include:
(a) The appropriate priority rating (
(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time to time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and
(d)(1) A statement that reads in substance:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:
This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or
(2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e).
(a)
(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b)
(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(c)
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not capable of being performed;
(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;
(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.
(d)
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.
(e)
(1) The order is issued in response to a hazard that has occurred; or
(2) The order is issued to prepare for an imminent hazard.
(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)
(c) Conflicting rated orders.
(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 217.33.
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b).
(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-F1 rated order to obtain the needed transformer.
(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
(a) The priority rating on a rated order may be changed or canceled by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.
(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used (
(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” (
(d) Combining rated and unrated orders.
(1) A person may combine rated and unrated order quantities on one purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
(a) General limitations.
(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by the Department of Energy (see § 217.41(c) for information on obtaining authorization for a priority rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or
(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]
(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b) Jurisdictional limitations.
(1) Unless authorized by the resource agency with jurisdiction, the provisions of this part are not applicable to the following resources:
(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);
(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);
(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);
(iv) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and
(v) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984).
(a) The EPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Infrastructure Security and Energy Restoration, for guidance or assistance (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Infrastructure Security and Energy Restoration (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the Department of Energy is unable to resolve the problem
(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE F 544 (05-11) (OMB control number 1910-5159) to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. Form DOE F 544 (05-11) may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached at Appendix I to this part.
(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.
(b) Rating authority for production or construction equipment.
(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Energy, in order to promote the national defense, may authorize or request the Department of Commerce to authorize, as appropriate, a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the Department of Energy or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy, the Department of Commerce, or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy or the Department of Commerce, as appropriate, will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy or the Department of Commerce, as appropriate, may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Requests for special priorities assistance should be timely,
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the problem.
Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or conditions of doing business.
(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:
(a) A copy of the written determination made, in accordance with section 202 of E.O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;
(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;
(c) A statement of the specific objective(s) of the allocation action;
(d) A list of the materials, services, or facilities to be allocated;
(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action (
(g) An evaluation of the impact of the proposed allocation action on the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian market operations.
No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to the national defense, and
(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
(b) Submitted the finding for the President's approval through the Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
There are three types of allocation orders available for communicating allocation actions. These are:
(a)
(b)
(c)
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217).
(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.
(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled.
An allocation order may be changed or canceled by an official action of the Department of Energy.
(a) The Department of Energy may take specific official actions to implement the provisions of this part.
(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
(a) A Rating Authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see § 217.41.
(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.
(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated orders,
(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.
(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.
(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part.
(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of Energy shall:
(1) Define the scope and purpose in the official action given to the person under investigation, and
(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Energy to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.
(2) Demands for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Energy any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions.
(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of the Department of Energy to interview the person's employees or agents, to inspect books, records, documents, other writings, and information, including electronically-stored information, in the person's possession or control at the place where that person usually keeps them or otherwise, and to inspect a person's property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or official actions.
(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.
(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action.
(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.
(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made.
If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict.
(a) A person may submit a request to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable statutes, or this part.
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93.
(d) A decision of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, under this section may be appealed to the Office of Infrastructure Security and Energy Restoration (For information on the appeal procedure, see § 217.81.)
(a) Any person who has had a request for adjustment or exception denied by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in section 217.93, under § 217.80, may appeal to the Office of Infrastructure Security and Energy Restoration who shall review and reconsider the denial.
(b)(1) Except as provided in this paragraph (b)(2), an appeal must be received by the Office of Infrastructure Security and Energy Restoration no later than 45 days after receipt of a written notice of denial from the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Office of Infrastructure Security and Energy Restoration for good cause shown.
(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see 217.14(d)), an appeal must be received by the Office of Infrastructure Security and Energy Restoration, no later than 15 days after receipt of a written notice of denial from the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. Contract performance under the order shall not be stayed pending resolution of the appeal.
(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Office of Infrastructure Security and Energy Restoration.
(e) When a hearing is granted, the Office of Infrastructure Security and
(f) When determining an appeal, the Office of Infrastructure Security and Energy Restoration may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Office of Infrastructure Security and Energy Restoration.
(h) The decision of the Office of Infrastructure Security and Energy Restoration shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.
(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law.
(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority previously issued by the Department of Energy pursuant to authority granted to the President in the Defense Production Act. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority.
All communications concerning this part, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
In rule document 2011-8690 appearing on pages 21579-21612 in the issue of Friday, April 15, 2011, the regulatory text is being republished below in its entirety due to errors in the equations.
On page 21604, in the third column, in the third paragraph from the top, the regulatory text should read as set forth below:
42 U.S.C. 6291-6317.
(1) The portion of a walk-in cooler or walk-in freezer that isolates the interior, refrigerated environment from the ambient, external environment; and
(2) All energy-consuming components of the walk-in cooler or walk-in freezer that are not part of its refrigeration system.
(1) A packaged dedicated system where the unit cooler and condensing unit are integrated into a single piece of equipment; or
(2) A split dedicated system with separate unit cooler and condensing unit sections; or
(3) A unit cooler that is connected to a multiplex condensing system.
(b)
(1) AHRI 1250 (I-P)-2009, (“AHRI 1250”), 2009 Standard for Performance Rating of Walk-In Coolers and Freezers, approved 2009, IBR approved for § 431.304.
(2) [Reserved]
(c) * * *
(2) ASTM C1363-05, (“ASTM C1363”), Standard Test Method for Thermal Performance of Building Materials and Envelope Assemblies by Means of a Hot Box Apparatus, approved May 1, 2005, IBR approved for Appendix A to Subpart R of part 431.
(d) CEN. European Committee for Standardization (French: Norme or German: Norm), Avenue Marnix 17, B-1000 Brussels, Belgium, Tel: + 32 2 550 08 11, Fax: + 32 2 550 08 19 or
(1) DIN EN 13164:2009-02, (“DIN EN 13164”), Thermal insulation products for buildings—Factory made products of extruded polystyrene foam (XPS)—Specification, approved February 2009, IBR approved for Appendix A to Subpart R of part 431.
(2) DIN EN 13165:2009-02, (“DIN EN 13165”), Thermal insulation products for buildings—Factory made rigid polyurethane foam (PUR) products—Specification, approved February 2009, IBR approved for Appendix A to Subpart R of part 431.
(e)
(1) NFRC 100-2010[E0A1], (“NFRC 100”), Procedure for Determining Fenestration Product U-factors, approved June 2010, IBR approved for Appendix A to Subpart R of part 431.
(2) [Reserved]
(b) * * *
(5) Determine the U-factor, conduction load, and energy use of walk-in cooler and walk-in freezer display panels, floor panels, and non-floor panels by conducting the test procedure set forth in Appendix A to this subpart, sections 4.1, 4.2, and 4.3, respectively.
(6) Determine the energy use of walk-in cooler and walk-in freezer display doors and non-display doors by conducting the test procedure set forth in Appendix A to this subpart, sections 4.4 and 4.5, respectively.
(7) Determine the Annual Walk-in Energy Factor of walk-in cooler and walk-in freezer refrigeration systems by conducting the test procedure set forth in AHRI 1250 (incorporated by reference;see § 431.303).
(8) Determine the annual energy consumption of walk-in cooler and walk-in freezer refrigeration systems:
(i) For systems consisting of a packaged dedicated system or a split dedicated system, where the condensing unit is located outdoors, by conducting the test procedure set forth in AHRI 1250 and recording the annual energy consumption term in the equation for annual walk-in energy factor in section 7 of AHRI 1250:
(ii) For systems consisting of a packaged dedicated system or a split dedicated system where the condensing unit is located in a conditioned space, by performing the following calculation:
(iii) For systems consisting of a single unit cooler or a set of multiple unit coolers serving a single piece of equipment and connected to a multiplex condensing system, by performing the following calculation:
This appendix covers the test requirements used to measure the energy consumption of the components that make up the envelope of a walk-in cooler or walk-in freezer.
The definitions contained in § 431.302 are applicable to this appendix.
(a) Calculate the U-factor of the display panel in accordance with section 5.3 of this appendix, Btu/h-ft
(b) Calculate the display panel surface area, as defined in section 3.4 of this appendix, A
(c) Calculate the temperature differential, ΔT
(d) Calculate the conduction load through the display panel, Q
(e) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(f) Calculate the total daily energy consumption, E
(a) Calculate the surface area, as defined in section 3.4 of this appendix, of the floor panel edge, as defined in section 3.3, A
(b) Calculate the surface area, as defined in section 3.4 of this appendix, of the floor panel core, as defined in section 3.2, A
(c) Calculate the total area of the floor panel, A
(d) Calculate the temperature differential of the floor panel, ΔΤ
(e) Calculate the floor foam degradation factor, DF
(f) Calculate the U-factor for panel core region modified by the long term thermal transmittance of foam, U
(g) Calculate the overall U-factor of the floor panel, U
(h) Calculate the conduction load through floor panels, Q
(i) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(j) Calculate the total daily energy consumption, E
(a) Calculate the surface area, as defined in section 3.4, of the non-floor panel edge, as defined in section 3.3, A
(b) Calculate the surface area, as defined in section 3.4, of the non-floor panel core, as defined in section 3.2, A
(c) Calculate total non-floor panel area, A
(d) Calculate temperature differential, ΔT
(e) Calculate the non-floor foam degradation factor, DF
(f) Calculate the U-factor, U
(g) Calculate the overall U-factor of the non-floor panel, U
(h) Calculate the conduction load through non-floor panels, Q
(i) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(j) Calculate the total daily energy consumption, E
(a) Calculate the U-factor of the door in accordance with section 5.3 of this appendix, Btu/h-ft
(b) Calculate the surface area, as defined in section 3.4 of this appendix, of the display door, A
(c) Calculate the temperature differential, ΔT
(d) Calculate the conduction load through the display doors, Q
Electrical components associated with display doors could include, but are not limited to: heater wire (for anti-sweat or anti-freeze application); lights (including display door lighting systems); control system units; and sensors.
(a) Select the required value for percent time off (PTO) for each type of electricity consuming device, PTO
(1) For lights without timers, control system or other demand-based control, PTO = 25 percent. For lighting with timers, control system or other demand-based control, PTO = 50 percent.
(2) For anti-sweat heaters on coolers (if included): Without timers, control system or other demand-based control, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 75 percent. For anti-sweat heaters on freezers (if included): Without timers, control system or other auto-shut-off systems, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 50 percent.
(3) For all other electricity consuming devices: Without timers, control system, or other auto-shut-off systems, PTO = 0 percent. If it can be demonstrated that the device is controlled by a preinstalled timer, control system or other auto-shut-off system, PTO = 25 percent.
(b) Calculate the power usage for each type of electricity consuming device, P
(c) Calculate the total electrical energy consumption for interior and exterior power, P
(d) Calculate the total electrical energy consumption, P
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/Wh
(2) For freezers, use EER = 6.3 Btu/Wh
(b) Calculate the additional refrigeration energy consumption due to thermal output from electrical components sited inside the display door, C
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(b) Calculate the total daily energy consumption due to conduction thermal load, E
(c) Calculate the total energy, E
(a) Calculate the surface area, as defined in section 3.4 of this appendix, of the non-display door, A
(b) Calculate the temperature differential of the non-display door, ΔT
(c) Calculate the conduction load through the non-display door: Q
Electrical components associated with a walk-in non-display door comprise any components that are on the non-display door and that directly consume electrical energy. This includes, but is not limited to, heater wire (for anti-sweat or anti-freeze application), control system units, and sensors.
(a) Select the required value for percent time off for each type of electricity consuming device, PTO
(1) For lighting without timers, control system or other demand-based control, PTO = 25 percent. For lighting with timers, control system or other demand-based control, PTO = 50 percent.
(2) For anti-sweat heaters on coolers (if included): Without timers, control system or other demand-based control, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 75 percent. For anti-sweat heaters on freezers (if included): Without timers, control system or other auto-shut-off systems, PTO = 0 percent. With timers, control system or other demand-based control, PTO = 50 percent.
(3) For all other electricity consuming devices: Without timers, control system, or other auto-shut-off systems, PTO = 0 percent. If it can be demonstrated that the device is controlled by a preinstalled timer, control system or other auto-shut-off system, PTO = 25 percent.
(b) Calculate the power usage for each type of electricity consuming device, P
(c) Calculate the total electrical energy consumption for interior and exterior power, P
(d) Calculate the total electrical energy consumption, P
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/Wh
(2) For freezers, use EER = 6.3 Btu/Wh
(b) Calculate the additional refrigeration energy consumption due to thermal output from electrical components associated with the non-display door, C
(a) Select Energy Efficiency Ratio (EER), as follows:
(1) For coolers, use EER = 12.4 Btu/W-h
(2) For freezers, use EER = 6.3 Btu/W-h
(b) Calculate the total daily energy consumption due to thermal load, E
(c) Calculate the total energy, E
Follow the test procedure in ASTM C1363, (incorporated by reference; see § 431.303), exactly, with these exceptions:
(i) Two (2) panels, 8 ft. ± 1 ft. long and 4 ft. ± 1 ft. wide must be used.
(ii) The panel edges must be joined using the manufacturer's panel interface joining system (e.g., camlocks, standard gasketing, etc.).
(iii) The Panel Edge Test Region, see figure 1, must be cut using the following dimensions:
1. If the panel contains framing members (e.g. a wood frame), then the width of edge (W) must be as wide as any framing member plus 2 in. ± 0.25 in. For example, if the face of the panel contains 1.5 in. thick framing members around the edge of the panel, then width of edge (W) = 3.5 in. ± 0.25 in and the Panel Edge Test Region would be 7 in. ± 0.5 in. wide.
2. If the panel does not contain framing members, then the width of edge (W) must be 4 in ± 0. 25 in.
3. Walk-in panels that utilize vacuum insulated panels (VIP) for insulation, width of edge (W) = the lesser of 4.5 in. ± 1 in. or the maximum width that does not cause the VIP to be pierced by the cutting device when the edge region is cut.
(iv) Panel Core Test Region of length Y and height Z, see Figure 1, must also be cut from one of the two panels such that panel length = Y + X, panel height = Z +X where X=2W.
(i) The air temperature on the “hot side”, as denoted in ASTM C1363, of the non-floor panel should be maintained at 75 °F ± 1 °F.
1. Exception: When testing floor panels, the air temperature should be maintained at 55 °F ± 1 °F.
(ii) The temperature on the “cold side”, as denoted in ASTM C1363, of the panel should be maintained at 35 °F ± 1 °F for the panels used for walk-in coolers and −10 °F ± 1 °F for panels used for walk-in freezers.
(iii) The air velocity must be maintained as natural convection conditions as described in ASTM C1363. The test must be completed using the masked method and with surround panel in place as described in ASTM C1363.
(i) Non-floor Panels
1. Panel Edge Region U-factor: U
2. Panel Core Region U-factor: U
(ii) Floor Panels
1. Floor Panel Edge Region U-factor: U
2. Floor Panel Core Region U-factor: U
Follow the test procedure in Annex C of DIN EN 13164 or Annex C of DIN EN 13165 (as applicable), (incorporated by reference; see § 431.303), exactly, with these exceptions:
(i) For freezers: 20 °F ± 1 °F must be used.
(ii) For coolers: 55 °F ± 1 °F must be used.
(i) A 800mm × 800mm square (× thickness of the panel) section cut from the geometric center of the panel that is being tested must be used as the sample for completing DIN EN 13165.
(ii) A 500mm × 500mm square (× thickness of the panel) section cut from the geometric center of the panel that is being tested must be used as the sample for completing DIN EN 13164.
(i) Non-floor Panels
1. Long Term Thermal Resistance: R
(ii) Floor Panels
1. Long Term Thermal Resistance: R
(a) Follow the procedure in NFRC 100, (incorporated by reference; see § 431.303), exactly, with these exceptions:
(1) The average convective heat transfer coefficient on both interior and exterior surfaces of the door should be based on the coefficients described in section 4.3 of NFRC 100.
(2) Internal conditions:
(i) Air temperature of 35 °F (1.7 °C) for cooler doors and −10 °F (−23.3 °C) for freezer doors
(ii) Mean inside radiant temperature must be the same as shown in section 5.3(a)(2)(i), above.
(3) External conditions
(i) Air temperature of 75 °F (23.9 °C)
(ii) Mean outside radiant temperature must be the same as section 5.3(a)(3)(i), above.
(4) Direct solar irradiance = 0 W/m
(b) Required Test Measurements
(i) Display Doors and Display Panels
1. Thermal Transmittance: U
(ii) Non-Display Door
1. Thermal Transmittance: U
Coast Guard, DHS.
Temporary Final rule.
The Coast Guard is establishing a temporary safety zone in the Captain of the Port (COTP) Zone New York on the navigable waters of the Upper New York Bay in the vicinity of Red Hook, New York for a fireworks display. This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. Persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the temporary safety zone unless authorized by the COTP New York or the designated on-scene representative.
This rule is effective from 8:30 p.m. until 10 p.m. on June 21, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0222 and are available online by going to
If you have questions on this temporary rule, call or e-mail LTJG Eunice James, Coast Guard Sector New York Waterways Management Division; 718-354-4163, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive information regarding the dates and scope of the event in time to publish a NPRM followed by a final rule before the effective date. The sponsor was not aware of the requirements for submitting an application for a marine event 135 days in advance, resulting in a late notification. The sponsor is now aware of this requirement for all future events. Nevertheless, the sponsor is unable to reschedule this event due to other activities being held in conjunction with the fireworks display. The safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels operating near the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The fireworks event was planned by a private party to celebrate the 10th Anniversary of New York Water Taxi. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes. This event poses significant risk to participants, spectators and the maritime public because of hazardous conditions associated with a fireworks display. This temporary safety zone is necessary to ensure the safety of these participants, spectators and vessels.
This rule establishes a temporary safety zone on the waters of the Upper New York Bay. The temporary safety zone will encompass all waters of the Upper New York Bay in the vicinity of Red Hook, Brooklyn, NY, within a 180 yards radius around position 40°40′52″ N, 074°01′39″ W (NAD 83) approximately 400 yards south of Governors Island.All persons and vessels shall comply with the instructions of the COTP New York or the designated representative. Entry into, transiting, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative. The COTP New York or the designated representative may be reached on VFH Channel 16.
We developed this 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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, as supplemented by Executive Order 13563, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The Coast Guard's implementation of this temporary safety zone will be of short duration and designed to minimize the impact to vessel traffic on navigable waters. This safety zone will only be enforced for 90 minutes. Furthermore, vessels may be authorized to transit the zone with permission of the COTP New York or the designated on-scene representative.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will 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 and operators of vessels intending to transit or anchor in a portion of the Upper New York Bay in the vicinity of Governors Island and Red Hook, NY. The fireworks will commence at 9 p.m. on June 21, 2011 and will last approximately 10 minutes.
This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessel traffic can safely transit around the zone. Before the effective period, we will issue maritime advisories widely available to users of the waterway. This rule will be in effect for only 90 minutes.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls 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 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 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply,
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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a temporary safety zone on a portion of the Upper New York Bay during the launching of fireworks. An environmental analysis checklist and a categorical exclusion determination are 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 amends 33 CFR Part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(1) Entry into, transit through, mooring or anchoring within this safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative.
(2) Persons desiring to operate within the safety zone established in this section may contact the COTP New York at telephone number 718-354-4398 or via on-scene patrol personnel on VHF channel 16 to seek permission to do so. If permission is granted, all persons and vessels must still comply with the instructions of the COTP New York or the designated on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Monterey Bay, off of Lovers Point, in Pacific Grove, California in support of the Pacific Grove Feast of Lanterns Fireworks Display. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or a designated representative.
This rule is effective from 9 p.m. through 9:45 p.m. on July 30, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0159 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade Allison Natcher at (415) 399-7442, or e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to
Pacific Grove Feast of Lanterns will sponsor the Pacific Grove Feast of Lanterns Fireworks Display on July 30, 2011, on the navigable waters of Monterey Bay, off of Lovers Point, in Pacific Grove, California. The fireworks display is meant for entertainment purposes. This safety zone establishes a temporary restricted area on the waters surrounding the fireworks launch site during the fireworks displays. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics over the water. The Coast Guard has granted the event sponsor a marine event permit for the fireworks displays.
From 9 p.m. until 9:45 p.m. the area to which the temporary safety zone applies will encompass the navigable waters around the fireworks launch site off of Lovers Point within a radius of 1,000 feet. At 9:45 p.m., the safety zone shall terminate. The fireworks launch site will be located in positions: 36°37′26.42″ N, 121° 54′54.03″ W (NAD 83).
The effect of the temporary safety zones will be to restrict navigation in the vicinity of the fireworks sites while the fireworks are set up, and until the conclusion of the scheduled displays. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this 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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant. The entities most likely to be affected are pleasure craft engaged in recreational activities. In addition, the rule will only restrict access for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in recreational activities and sightseeing have ample space outside of the affected areas of Monterey Bay, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls 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 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 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 0023.1 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 concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 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.
(a)
From 9 p.m. until 9:45 p.m. the area to which the temporary safety zone applies will encompass the navigable waters around the fireworks launch site off of Lovers Point within a radius of 1,000 feet. At 9:45 p.m., the safety zone shall terminate.
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the designated representative. Persons and vessels may request permission to enter the safety zones on VHF-16 or through the 24-hour Command Center at telephone (415) 399-3547.
(d) Effective period. This section is effective from 9 p.m. through 9:45 p.m. on July 30, 2011.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Detroit River, Detroit, MI. This zone is intended to restrict vessels from a portion of the Detroit River during the Nicole Cerrito Birthday Fireworks. This temporary safety zone is necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless
This rule is effective from 10 p.m. through 11:15 p.m. on June 11, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0416 and are available online by going to
If you have questions on this temporary rule, call or e-mail LT Katie Stanko, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568-9508, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with maritime fireworks displays.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On June 11, 2011, a private party is holding a land-based birthday celebration that will include fireworks launched from a point on the Detroit River. The fireworks display will occur between 10 p.m. and 11:15 p.m., June 11, 2011. The Captain of the Port has determined that waterborne fireworks displays present significant hazards to vessels and spectators in the vicinity of the launch site.
Because of the aforesaid hazards, the Captain of the Port has determined that the temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Nicole Cerrito Birthday Fireworks Display. Accordingly, the safety zone will encompass all waters on the Detroit River within a 300 foot radius of the fireworks barge launch site located off the shore of Detroit, MI at position 42°21′04″ N, 082°58′32″ W from 10 p.m. until 11:15 p.m. on June 11, 2011. All geographic coordinates are North American Datum of 1983 (NAD 83).
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. The Captain of the Port or his designated representative may be contacted via VHF Channel 16.
We developed this 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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the launch platform will be relatively small and exist for only a minimal time. Thus, restrictions on vessel movement within any particular area of the Detroit River are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will 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 and operators of vessels intending to transit or anchor in this portion of the Detroit River between 10 p.m. through 11:15 p.m. on June 11, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities because vessels can easily transit around the zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain
This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction because it involves the establishment of a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 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.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated representative.
(3) The “designated representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the PortDetroit or his designated representative to obtain permission to do so.
(5) Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his designated representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zones for annual firework displays in the Captain of the Port, Puget Sound area of responsibility during the dates and times noted below. This action is necessary to prevent injury and to protect life and property of the maritime public from the hazards associated with the firework displays. During the enforcement periods, entry into, transit through, mooring, or anchoring within these zones is prohibited unless authorized by the Captain of the Port, Puget Sound or Designated Representative.
The regulations in 33 CFR 165.1332 will be enforced during the dates and times noted below.
If you have questions on this notice, call or e-mail ENS Anthony P. LaBoy, Sector Puget Sound Waterways Management, Coast Guard; telephone 206-217-6323,
The Coast Guard is providing notice of enforcement of the safety zones established for Annual Fireworks Displays within the Captain of the Port, Puget Sound Area of Responsibility in 33 CFR 165.1332 during the dates and times noted below.
The following safety zone will be enforced from 5 p.m. on July 1, 2011 through 1 a.m. on July 2, 2011:
The following safety zone will be enforced from 5 p.m. on July 2, 2011 through 1 a.m. on July 3, 2011:
The following safety zones will be enforced from 5 p.m. on July 3, 2011 through 1 a.m. on July 4, 2011:
The following safety zones will be enforced from 5 p.m. on July 4, 2011 through 1 a.m. on July 5, 2011.
The following safety zone will be enforced from 5 p.m. on July 09, 2011 through 1 a.m. on July 10, 2011:
The following safety zone will be enforced from 5 p.m. on July 29, 2011 through 1 a.m. on July 30, 2011:
The following safety zone will be enforced from 5 p.m. on August 13, 2011 through 1 a.m. on August 14, 2011:
The special requirements listed in 33 CFR 165.1332, which can be found in the
All vessel operators who desire to enter the safety zone must obtain permission from the Captain of the Port or Designated Representative by contacting either the on-scene patrol craft on VHF Ch 13 or Ch 16 or the Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) via telephone at (206) 217-6002.
The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 165.1332 and 33 CFR 165 and 5 U.S.C. 552(a). In addition to this notice, the Coast Guard will provide the maritime community with extensive advanced notification of the safety zones via the Local Notice to Mariners and marine information broadcasts on the day of the events.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to determine that the St. Louis (MO-IL) metropolitan nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. The St. Louis metropolitan ozone nonattainment area includes the counties of Franklin, Jefferson, St. Charles, and St. Louis as well as St. Louis City in Missouri; and the counties of Madison, Monroe, St. Clair, and Jersey in Illinois. This final determination is based on three years of complete, quality assured ambient air quality monitoring data for Missouri and Illinois for the 2008 through 2010 ozone seasons showing attainment of the NAAQS at all ozone monitoring sites in the nonattainment area. Based on this final determination, the obligation to submit certain ozone attainment demonstration requirements, along with other requirements related to the attainment of the 1997 8-hour ozone standard are suspended.
This rule is effective on July 11, 2011.
EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2010-0416. All documents in the docket are listed on the
In Region 7 contact Lachala Kemp, Air Planning and Development Branch, 901 N. 5th Street, Kansas City, Kansas 66101 at 913-551-7214, or by e-mail at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:
EPA is making a final determination that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. EPA published in the
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. On January 6, 2010, EPA again addressed this 2008 revised standard and proposed to set the primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, rather than at 0.075 ppm. EPA is working to complete reconsideration of the standard and thereafter will proceed with designations. Today's rulemaking relates only to a final determination of attainment for the 1997 8-hour ozone standard and is not affected by the ongoing process of reconsidering the revised 2008 standard.
The monitors and design values are displayed in Table 1. The table summarizes the annual fourth-high daily maximum 8-hour ozone concentrations and their 3-year (2008-2010) averages for all monitors in the St. Louis (MO-IL) metropolitan nonattainment area. These data reflect peak ozone concentrations quality assured and reported by the States of Illinois and Missouri.
Review of the 2008-2010 ozone monitoring data in the nonattainment area shows that all sites were attaining the 1997 8-hour ozone NAAQS during this period. Therefore, based on the most recent three years of complete, quality assured ozone monitoring data, EPA is determining that the 1997 8-hour ozone standard has been attained in the St. Louis (MO-IL) metropolitan ozone nonattainment area.
EPA is taking final action to determine that the St. Louis metropolitan 8-hour ozone nonattainment area consisting of both the Missouri and Illinois portions of the area has attained the 1997 8-hour ozone standard. As provided in 40 CFR 51.918, based on this determination, certain attainment demonstration requirements and associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIP requirements related to attainment of the 8-hour ozone NAAQS shall be suspended as to the St. Louis nonattainment area. Under 40 CFR 51.918, a final determination that the area has met the 1997 8-hour ozone standard suspends the state's obligation to submit requirements related to attainment, for so long as the area continues to attain the standard. This action does not constitute a redesignation to attainment under CAA section 107(d)(3), because Missouri and Illinois do not have approved maintenance plans as required under section 175A of the CAA, nor has EPA made a determination that the area has met the other requirements for redesignation. The ozone classification and designation status of the area remains moderate nonattainment for the 1997 8-hour ozone NAAQS until such time as a redesignation request and maintenance plan are submitted to EPA and EPA determines that it meets the CAA requirements for redesignation to attainment.
If EPA subsequently determines, after notice-and-comment rulemaking in the
EPA is taking final action to determine that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard based on three years of complete, quality assured ambient air quality monitoring data for Missouri and Illinois for the 2008-2010 ozone seasons. As provided in 40 CFR 51.918, based on this determination, the requirements for Missouri and Illinois to submit an attainment demonstration and associated reasonably available control measures, a reasonable further progress plan, and contingency measures under section 172(c)(9), and any other planning SIP related to attainment of the 1997 8-hour ozone NAAQS for the St. Louis Metropolitan area would be suspended. This suspension of requirements would be effective as long as the area continues to attain the 1997 8-hour ozone standard. This action addresses only the 1997 8-hour ozone standard of 0.08 ppm, and does not address any subsequent revisions to the standard.
This final determination of attainment is based on air quality data and would result in the suspension of certain Federal Requirements. Accordingly, this action does not impose additional requirements beyond those imposed by state law. Therefore this final 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 Clean Air Act; 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 8-hour ozone clean NAAQS data final determination for the St. Louis (MO-IL) metropolitan area does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 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. (See section 307(b)(2).)
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(jj) Determination of Attainment. EPA has determined, as of June 9, 2011, that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 51.918, suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other plan elements related to attainment of the standards for as long as the area continues to meet the 1997 Ozone NAAQS.
2. Section 52.1342 is added to subpart AA to read as follows:
Determination of Attainment. EPA has determined, as of June 9, 2011, that the St. Louis (MO-IL) metropolitan 1997 8-hour ozone nonattainment area has attained the 1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 51.918, suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, reasonable further progress, contingency measures, and other plan elements related to attainment of the standards for as long as the area continues to meet the 1997 Ozone NAAQS.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a portion of the State Implementation Plan (SIP) revision submitted by the State of Oregon for the purpose of addressing certain provisions of the interstate transport provisions of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS or standards) and the 1997 fine particulate matter (PM
Copies of the State's SIP revision and other information supporting this action are available for inspection at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101.
Donna Deneen, EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101, or at (206) 553-6706.
Throughout this notice, the words “we”, “us”, or “our” means the Environmental Protection Agency (EPA).
EPA is approving a portion of Oregon's Interstate Transport State Implementation Plan (SIP) revision for the 1997 8-hour ozone NAAQS and 1997 PM
On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM
On June 23, 2010, the State of Oregon submitted a SIP revision addressing the requirements of section 110(a)(2)(D)(i) for both the 1997 8-hour ozone NAAQS and 1997 PM
EPA provided a 30-day review and comment period and solicited comments on our proposal published on April 7, 2011. 76 FR 19292. EPA received no comments on this proposed action.
EPA is approving the revisions to the Oregon SIP as discussed in our proposed action and concludes that for the 1997 8-hour ozone NAAQS and 1997 PM
As noted previously, EPA will address element (3) interference with any other state's required measures to prevent significant deterioration of its
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 8, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) On June 23, 2010 and December 23, 2010, the Oregon Department of Environmental Quality submitted a SIP revision, adopted by the Oregon Environmental Quality Commission on April 30, 2010, to meet the requirements of Clean Air Act section 110(a)(2)(D)(i). EPA approves the portion of this submittal relating to significant contribution to nonattainment of the NAAQS in any other state and interference with maintenance of the NAAQS by any other state.
(b) [Reserved.]
Environmental Protection Agency (EPA).
Final rule.
EPA is approving revisions to the Idaho State Implementation Plan (SIP) that were submitted to EPA by the State of Idaho on April 16, 2007. This SIP submittal includes new and revised rules which provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement Best Available Retrofit Technology (BART) requirements.
This action is effective on July 11, 2011.
EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2007-0406. All documents in the docket are listed on the
Steve Body at telephone number: (206) 553-0782, e-mail address:
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.
Information is organized as follows:
On January 5, 2011, EPA published in the
The rule revisions were submitted in accordance with the requirements of section 110 and part D of the Clean Air Act.
EPA provided a 30-day review and comment period and solicited comments on our proposal published in the January 5, 2011,
Pursuant to section 110 of the CAA, EPA is approving as a SIP revision Idaho rules: IDAPA58.01.01.006.04.a,b,c; 006.14.a through z; 006.16; 006.28; 006.42; 006.63.d; 006.65; 006.67; 006.81; 006.91; 006.92.b; 006.99; 006.101.b; 006.124; 006.125; 007.02a.iv; 007.02.d; 651; 665; 666; 667; and 668, that provide the State of Idaho authority to impose the BART provisions of 40 CFR 51.308(e). These revisions are described in detail in EPA's proposed action, published in the
Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the 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 rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and the EPA notes
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 August 8, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission or FCC) denies a petition for reconsideration of the period in which inland VPCSA incumbents must vacate Channel 87B, and declines to extend this period generally to non-AIS operations because such an extension would undermine the primary goal of this proceeding. Further, the Commission determines that rechannelizing the VPC frequency band
Effective July 11, 2011.
Jeffrey Tobias,
This is a summary of the Federal Communications Commission's
1. AIS, which is used to monitor and track maritime traffic for purposes of both navigational safety and homeland security, is a global maritime navigation safety communications system through which marine vessels automatically transmit navigational data to appropriately equipped shore stations, other ships, and aircraft. The International Telecommunication Union has designated VHF maritime Channel 87B for AIS use in international waters. In the
2. Two duplex VPC channels had been set aside for public safety interoperability in each inland VPCSA. Specifically, Channel 25 (157.250/161.850 MHz) was set aside in each inland VPCSA, and either Channel 84 (157.225/161.825 MHz) or Channel 85 (157.275/161.875 MHz) was also set aside in each inland VPCSA. The Commission determined in the
3. PacifiCorp argues that allowing public safety incumbents to remain on Channels 84 and 85 for up to fifteen years while mandating that inland VPCSA licensees migrate to those channels within two years significantly undermines the ability of certain geographic area licensees on VPC Channel 87, such as PacifiCorp, to make a seamless transition to replacement Channels 84 and 85. It requests that the Commission extend the grandfathering period for inland VPCSA licensees to remain on Channel 87B to six months after the public safety incumbent(s) in that VPCSA vacate Channel 84 or 85. In the alternative, PacifiCorp requests that affected inland VPCSA licensees be given the right to apply for an unlicensed exclusive-use channel in the VHF band, such as a part 22 VHF channel, to use until six months after Channel 84 or 85 is vacated.
4. The Commission declines to extend the grandfathering period for inland VPCSA licensees to remain on Channel 87B. The paramount goal of this proceeding is to ensure that AIS is deployed widely, quickly, reliably, and cost-effectively, and in a manner that will maximize its capabilities. In the
5. PacifiCorp also asserts that, even where Channels 84 and 85 are not encumbered by public safety incumbents, the designation of those channels as VPC spectrum does not fully offset inland VPCSA licensees' loss of Channel 87B. VPC channels are 25 kilohertz wide, but, under § 80.371(c)(1)(iii) of the Commission's rules, VPC licensees may also operate on 12.5 kHz offset frequencies in areas where the licensee is authorized on both frequencies adjacent to the offset frequency, and in areas where the licensee on the other side of the offset frequency consents to the licensee's use of the adjacent offset frequency. Thus, an inland VPCSA incumbent licensed on Channels 27 (157.350/161.950 MHz), 87 (157.375/161.975 MHz), and 28 (157.400/162.000 MHz) can operate on the interstitial channel between Channels 27 and 87 and the interstitial channel between Channels 87 and 28. After the licensee replaces Channel 87B with Channel 84 or 85, however, it loses those two interstitial channels and gains only one interstitial channel (
6. To address both this particular issue and what PacifiCorp views more broadly as the current inefficient use of the VPC spectrum, PacifiCorp recommends that the Commission revise the channel plan for the inland VPCSAs. Specifically, PacifiCorp proposes that the Commission split the 25 kHz VPC channels into adjacent 12.5 kHz channels, and permit inland VPC licensees to use two 12.5 kHz channels with channel centers offset 6.25 kHz from the center frequency of each existing 25 kHz channel. In the alternative, PacifiCorp suggests that the Commission retain the existing VPC band plan, but shift the twenty-five kilohertz of spectrum that is designated for public safety interoperability in order to make an additional interstitial channel available for VPC use. Such action, PacifiCorp says, will allow for more intensive use of VPC spectrum by avoiding the stranding of spectrum where a licensee chooses to deploy more spectrally-efficient 12.5 kHz equipment but does not control both of the adjacent 25 kHz channels.
7. The Commission concludes that PacifiCorp's proposals to modify the VPC channel plan are beyond the scope of this rulemaking proceeding. The
8. PacifiCorp argues that its proposed alternative channel plans are a natural and logical outgrowth of actions already contemplated and taken by the Commission, and would merely complete the prior efforts by the Commission to ‘restore the operating capacity’ of inland VPCSA licensees. The Commission disagrees. In determining whether an agency's adopted rule can be deemed a logical outgrowth of a proposed rule, the focus of the inquiry is on whether the purposes underlying the APA notice-and-comment requirements have been served. In furtherance of this inquiry, the agency should consider whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule, and whether the final rule could have been anticipated by persons with knowledge of the proposed rule. The Commission concludes that interested parties who potentially may have objected to, or wished to comment on, the rule changes now proposed by PacifiCorp did not have meaningful notice that such rule changes might be adopted, and could not have anticipated that, in this proceeding focused on domestic implementation of AIS, the Commission might broadly revise the VPC channel plan. The primary objective of the rulemaking proceeding is to ensure that the United States can take full advantage of the navigational safety and homeland security benefits of AIS, but PacifCorp's proposals address matters regarding the VPC frequency band that are at best ancillary to this objective. Nothing in the
9. Having determined to affirm its decisions regarding the grandfathering provisions adopted in the
10. Finally, the Commission also corrects a typographical error in § 2.106 of its rules, note US228, and § 90.20(g)(2)(ii) of its rules, which state that incumbent site-based Channel 87B licensees in the inland VPCSAs are grandfathered until March 4, 2024, rather than March 2, 2024 (fifteen years after the effective date of the rule amendments adopted in the
11. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
12. The Commission will send a copy of this
13. Accordingly, pursuant to section 405(a) of the Communications Act of 1934, as amended, 47 U.S.C. 405(a), and § 1.429 of the Commission's rules, 47 CFR 1.429, that the petition for
14. Pursuant to the authority of sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, that parts 2 and 80 of the Commission's rules
15. The proceeding WT Docket No. 04-344
Communications equipment, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 80 and 90 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
US228The use of the bands 161.9625-161.9875 MHz (AIS 1 with center frequency 161.975 MHz) and 162.0125-162.0375 MHz (AIS 2 with center frequency 162.025 MHz) by the maritime mobile service is restricted to Automatic Identification Systems (AIS), except that non-Federal stations in the band 161.9625-161.9875 MHz may continue to operate on a primary basis according to the following schedule:
(a) In VHF Public Coast Service Areas (VPCSAs) 1-9, site-based stations licensed prior to November 13, 2006 may continue to operate until expiration of the license term for licenses in active status as of November 13, 2006;
(b) In VPCSAs 10-42, site-based stations licensed prior to March 2, 2009 may continue to operate until March 2, 2024; and
(c) In VPCSAs 10-42, geographical stations licensed prior to March 2, 2009 may continue to operate until March 2, 2011.
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.
(c)(1)(i) * * *
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).
(g) * * *
(2) * * *
(ii) The channel pairs 157.225 MHz/161.825 MHz and 157.275 MHz/161.875 MHz were formerly allocated and assigned under this section as public safety interoperability channels but were reallocated for assignment as VHF public coast station channels under § 80.371(c) of this chapter. Public safety operations licensed on these channels as of March 2, 2009 or licensed pursuant to an application filed prior to September 19, 2008, may remain authorized to operate on the channels on a primary basis until March 2, 2024.
Federal Communications Commission.
Final rule.
The Commission grants a petition for rulemaking filed by NewsChannel 5 Network, LLC (“NewsChannel 5”), the licensee of WTVF(TV), requesting the substitution of channel 25 for channel 5 at Nashville. According to NewsChannel 5, after WTVF(TV) transitioned from its pre-transition digital channel 56 to its post-transition digital channel 5, thousands of calls were received from viewers that could no longer view the station's digital signal.
This rule is effective July 11, 2011.
Joyce L. Bernstein,
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
The Commission will send a copy of this
Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
We must receive comments on this proposed AD by July 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; phone: 514-855-5000; fax: 514-855-7401; e-mail:
You may examine the AD docket on the Internet at
Christopher Alfano, Aerospace Engineer, Airframe & Mechanical Systems Branch, ANE-171, New York Aircraft Certification Office (ACO), FAA, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: 516-228-7340; fax: 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has issued Canadian Airworthiness Directive CF-2010-37, dated October 28, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
This directive mandates replacement of the [certain] Water Accumulator Assemblies [with new water accumulator assemblies] to improve drainage of the pitot-static tubing.
You may obtain further information by examining the MCAI in the AD docket.
Bombardier Inc., has issued Service Bulletin 601R-34-147, Revision B, dated March 8, 2011; and Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 1,041 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,200 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,426,170, or $1,370 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by July 25, 2011.
(b) None.
(c) This AD applies to all Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, serial numbers 7003 thru 7067, 7069 thru 7990, 8000 thru 8107, and subsequent; Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; and Model CL-600-2D24 (Regional Jet Series 900) airplanes; certificated in any category.
(d) Air Transport Association (ATA) of America Code 34: Navigation.
(e) The mandatory continuing airworthiness information (MCAI) states:
There have been several in-service reports of airspeed mismatch between the pilot and co-pilot's airspeed indicators. It was discovered that during or after heavy rain, the pitot-static tubing may become partially or completely blocked by water, which fails to enter the drain bottles. Investigation revealed that drain bottles used in the primary pitot-static system include check valves, which impede the entry of water into the drain bottle. This condition, if not corrected, may result in erroneous airspeed and altitude indications.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 9 months after the effective date of this AD, do the actions specified in paragraphs (g)(1) and (g)(2) of this AD, as applicable.
(1) For Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes identified in Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011: Replace water accumulator assemblies having part numbers (P/N) 50029-001, 9435015, 50030-001, and 9435014 installed on the pitot and static lines of the air data computer (ADC) with new or serviceable water accumulator assemblies having P/N 50036-001, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011.
(2) For Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) airplanes: Replace water accumulator assemblies having P/N 50033-001 installed on the pitot and static lines of the ADC with new or serviceable water accumulator assemblies having P/N 50036-001, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010.
(h) As of the effective date of this AD, no person may install a water accumulator assembly P/N 50029-001, 9435015, 50030-001, or 9435014 for Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, or P/N 50033-001 for Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and
(i) Replacing water accumulator assemblies in accordance with Bombardier Service Bulletin 670BA-34-147, dated April 1, 2009; or Revision A, dated November 3, 2009; before the effective date of this AD is acceptable for compliance with the corresponding replacement required by paragraph (g)(1) of this AD.
(j) Replacing water accumulator assemblies in accordance with Bombardier Service Bulletin 670BA-34-030, dated April 1, 2009; or Revision A, dated November 3, 2009; (for Model CL-600-2C10, CL-600-2D15, and CL-600-2D24 airplanes), before the effective date of this AD, is acceptable for compliance with the corresponding replacement required by paragraph (g)(2) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(k) The following provisions also apply to this AD:
(1)
(2)
(l) Refer to MCAI Transport Canada Civil Aviation Airworthiness Directive CF-2010-37, dated October 28, 2010; Bombardier Service Bulletin 601R-34-147, Revision B, dated March 8, 2011; and Bombardier Service Bulletin 670BA-34-030, Revision B, dated March 23, 2010; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to the products listed above. The existing AD currently requires frequent inspections of the fuel pressure supply for excessive oscillations to determine if high-pressure fuel pumps have been exposed to damaging pressure oscillations. Pumps that have been exposed require replacement before further flight. Since we issued that AD, Austro Engine, the manufacturer of the pump, introduced a new part number (P/N) fuel pump as mandatory terminating action to the repetitive inspections. This proposed AD would require the initial and repetitive inspections of AD 2010-23-09, but would also require installing HP fuel pump P/N E4A-30-200-000, as mandatory terminating action to the repetitive inspections. We are proposing this AD to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
We must receive comments on this proposed AD by July 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria, phone: +43 2622 23000; fax: +43 2622 23000-2711, or go to:
You may examine the AD docket on the Internet at
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7176; fax: 781-238-7199; 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
On October 27, 2010, we issued AD 2010-23-09, Amendment 39-16498 (75 FR 68179, November 5, 2010), for Austro Engine GmbH model E4 diesel
Since we issued AD 2010-23-09, EASA issued AD 2011-0039, dated March 8, 2011, adding a terminating action on Austro Engine GmbH model E4 diesel piston engines.
We reviewed Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, and Austro Engine GmbH Mandatory Service Bulletin No. MSB-E4-009/2, dated March 4, 2011. The actions described in this service information are intended to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
We are proposing this AD 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.
This proposed AD would retain all the requirements of AD 2010-23-09, and require installing HP fuel pump P/N E4A-30-200-000, as mandatory terminating action to the repetitive inspections.
Based on the service information, we estimate that this proposed AD will affect about 32 model E4 diesel piston engines, installed on airplanes of U.S. registry. We also estimate that it will take about 1 work-hour per engine to perform one inspection, and about 2 work-hours per engine to replace the HP fuel pump. The average labor rate is $85 per work-hour. Required parts will cost about $2,325 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $82,560.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 removing airworthiness directive (AD) 2010-23-09, Amendment 39-16498 (75 FR 68179, November 5, 2010), and adding the following new AD:
(a) The FAA must receive comments on this AD action by July 25, 2011.
(b) This AD supersedes AD 2010-23-09, Amendment 39-16498.
(c) This AD applies to Austro Engine GmbH model E4 diesel piston engines, with high-pressure (HP) fuel pump, part number (P/N) E4A-30-100-000, installed.
(d) This AD was prompted by Austro Engine GmbH introducing a new P/N fuel pump as mandatory terminating action to the repetitive inspections required by AD 2010-23-09, Amendment 39-16498. We are issuing this AD to prevent engine power loss or in-flight shutdown, which could result in loss of control of the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(1) Inspect the fuel pressure supply for excessive oscillations using the inspection schedule in Table 1 of this AD.
(2) Use Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, to do the inspections.
(3) Replace the HP fuel pump before further flight with a new HP fuel pump, P/N E4A-30-200-000, if the oscillations exceed 300mV (750hPa).
(4) As mandatory terminating action to the repetitive inspections, within 120 flight hours after the effective date of this AD, replace the HP fuel pump, P/N E4A-30-100-000, with an HP fuel pump, P/N E4A-30-200-000. Austro Engine GmbH Mandatory Service Bulletin (MSB) No. MSB-E4-009/2 contains guidance on replacing the HP fuel pump.
(f) After the effective date of this AD, do not install any HP fuel pump P/N E4A-30-100-000, onto any engine.
(g) After the effective date of this AD, do not install any engine equipped with HP fuel pump P/N E4A-30-100-000, onto any airplane.
(h) The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(i) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2011-0039, dated March 8, 2011, Austro Engine GmbH Work Instruction No. WI-MSB-E4-009, dated October 7, 2010, and Austro Engine GmbH MSB No. MSB-E4-009/2, dated March 4, 2011, for related information. For a copy of this service information, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria, phone: +43 2622 23000; fax: +43 2622 23000-2711, or go to:
(j) For more information about this AD, contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238-7176; fax: (781) 238-7199; e-mail:
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval and a limited disapproval of a revision to the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation (TDEC) on April 4, 2008, that addresses regional haze for the first implementation period. This revision addresses the requirements of the Clean Air Act (CAA) and EPA's rules that require states to prevent any future and remedy any existing anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of this SIP revision to implement the regional haze requirements for Tennessee on the basis that the revision, as a whole, strengthens the Tennessee SIP. Also in this action, EPA is proposing a limited disapproval of this same SIP revision because of the deficiencies in the State's April 2008 regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR).
Comments must be received on or before July 11, 2011.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0786, by one of the following methods:
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Sara Waterson or Michele Notarianni, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency,
EPA is proposing a limited approval of Tennessee's April 4, 2008, SIP revision addressing regional haze under CAA sections 301(a) and 110(k)(3) because the revision as a whole strengthens the Tennessee SIP. However, the Tennessee SIP relies on CAIR, an EPA rule, to satisfy key elements of the regional haze requirements. Due to the remand of CAIR,
Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing guidance, a limited approval results in approval of the entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full approval of the SIP revision.
While CAIR will not remain in effect indefinitely, it is currently in force.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713), the RHR. The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III of this preamble. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various Federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and Tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and Tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Visibility Improvement State and Tribal Association of the Southeast (VISTAS) RPO is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the Southeastern United States. Member state and tribal governments include: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia, and the Eastern Band of the Cherokee Indians.
Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common
The deciview is used in expressing RPGs (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's
For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs (
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.
In their SIPs, states must identify potential BART sources, described as “BART-eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP.
As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for CAIR.
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state.
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS.
As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network,
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs.
CAIR, as originally promulgated, requires 28 states and the District of Columbia to reduce emissions of SO
On July 11, 2008, the DC Circuit issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety.
The following is a summary of the elements of the regional haze SIPs that are potentially affected by the remand of CAIR. Many states relied on CAIR as an alternative to BART for SO
EPA is intending to propose to issue limited approvals of those regional haze SIP revisions that rely on CAIR to address the impact of emissions from a state's own EGUs. Limited approval results in approval of the entire regional haze submission and all its elements. EPA is taking this approach because an affected state's SIP will be stronger and more protective of the environment with the implementation of those measures by the state and having Federal approval and enforceability than it would without those measures being included in the state's SIP.
EPA also intends to propose to issue limited disapprovals for regional haze SIP revisions that rely on CAIR concurrently with the proposals for limited approval. As explained in the 1992 Calcagni Memorandum, “[t]hrough a limited approval, EPA [will] concurrently, or within a reasonable period of time thereafter, disapprove the rule * * * for not meeting all of the applicable requirements of the Act. * * * [T]he limited disapproval is a rulemaking action, and it is subject to notice and comment.” Final limited disapproval of a SIP submittal does not affect the Federal enforceability of the measures in the subject SIP revision nor prevent state implementation of these measures. The legal effects of the final limited disapproval are to provide EPA the authority to issue a FIP at any time, and to obligate the Agency to take such action no more than two years after the effective date of the final limited disapproval action.
On April 4, 2008, TDEC's Division of Air Pollution Control submitted revisions to the Tennessee SIP to address regional haze in the State's Class I areas as required by EPA's RHR.
Tennessee has two Class I areas within its borders: Great Smoky Mountains National Park and Joyce-Kilmer Slickrock Wilderness Area. These Class I areas also fall within the geographic boundaries of North Carolina. Therefore, both Tennessee and North Carolina are responsible for developing their own regional haze SIPs that address these Class I areas. The two states worked together to determine appropriate RPGs, including consulting with other states that impact the two Class I areas, as discussed in V.F.1. In addition, both Tennessee and North Carolina are responsible for describing their own long-term emission strategies, their role in the consultation processes, and how their particular state SIP meets the other requirements in EPA's regional haze regulations.
The Tennessee regional haze SIP establishes RPGs for visibility improvement at each of these Class I areas and a LTS to achieve those RPGs within the first regional haze implementation period ending in 2018. In developing the LTS for each area, Tennessee considered both emission sources inside and outside of Tennessee that may cause or contribute to visibility impairment in Tennessee's Class I areas. The State also identified and considered emission sources within Tennessee that may cause or contribute to visibility impairment in Class I areas in neighboring states as required by 40 CFR 51.308(d)(3). The VISTAS RPO worked with the State in developing the technical analyses used to make these determinations, including state-by-state contributions to visibility impairment in specific Class I areas, which included the two areas in Tennessee and those areas affected by emissions from Tennessee.
As required by the RHR and in accordance with EPA's 2003 Natural Visibility Guidance, Tennessee calculated baseline/current and natural visibility conditions for each of its Class I areas, as summarized below (and as further described in sections III.B.1 and III.B.2. of EPA's TSD to this
Natural background visibility, as defined in EPA's 2003 Natural Visibility Guidance, is estimated by calculating the expected light extinction using default estimates of natural concentrations of fine particle components adjusted by site-specific estimates of humidity. This calculation uses the IMPROVE equation, which is a formula for estimating light extinction from the estimated natural concentrations of fine particle components (or from components measured by the IMPROVE monitors). As documented in EPA's 2003 Natural Visibility Guidance, EPA allows states to use “refined” or alternative approaches to 2003 EPA guidance to estimate the values that characterize the natural visibility conditions of the Class I areas. One alternative approach is to develop and justify the use of alternative estimates of natural concentrations of fine particle components. Another alternative is to use the “new IMPROVE equation” that was adopted for use by the IMPROVE Steering Committee in December 2005.
The new IMPROVE equation takes into account the most recent review of the science
The Joyce Kilmer-Slickrock Wilderness Area does not contain an IMPROVE monitor. In cases where onsite monitoring is not available, 40 CFR 51.308(d)(2)(i) requires states to use the most representative monitoring available for the 2000-2004 period to establish baseline visibility conditions, in consultation with EPA. Tennessee used and EPA concurs with the use of 2000-2004 data from the IMPROVE monitor at Great Smoky Mountains National Park for the Joyce Kilmer-Slickrock Wilderness Area. The Great Smoky Mountains National Park is nearest and contiguous to the Joyce Kilmer-Slickrock Wilderness Area, and the areas possess similar characteristics, such as meteorology and topography.
TDEC estimated baseline visibility conditions at both Tennessee Class I areas using available monitoring data from a single IMPROVE monitoring site in the Great Smoky Mountains National Park. As explained in section III.B, for the first regional haze SIP, baseline visibility conditions are the same as current conditions. A five-year average of the 2000 to 2004 monitoring data was calculated for each of the 20 percent worst and 20 percent best visibility days at each Tennessee Class I area. IMPROVE data records for Great Smoky Mountains National Park for the period 2000 to 2004 meet the EPA requirements for data completeness. See page 2-8 of EPA's 2003 Tracking Progress Guidance. Table 3.3-1 from Appendix G of the Tennessee regional haze SIP, also provided in section III.B.3 of EPA's TSD to this action, lists the 20 percent best and worst days for the baseline period of 2000-2004 for Great Smoky Mountains National Park. This data is also provided at the following Web site:
For the Tennessee Class I areas, baseline visibility conditions on the 20 percent worst days are approximately 30 deciviews. Natural visibility in these areas is predicted to be approximately 11 deciviews on the 20 percent worst days. The natural and baseline conditions for Tennessee's Class I areas for both the 20 percent worst and best days are presented in Table 1 below.
In setting the RPGs, Tennessee considered the uniform rate of progress needed to reach natural visibility conditions by 2064 (“glidepath”) and the emission reduction measures needed to achieve that rate of progress over the period of the SIP to meet the requirements of 40 CFR 51.308(d)(1)(i)(B). As explained in EPA's Reasonable Progress Guidance document, the uniform rate of progress is not a presumptive target, and RPGs may be greater, lesser, or equivalent to the glidepath.
The State's implementation plan presents two sets of graphs, one for the 20 percent best days, and one for the 20 percent worst days, for its two Class I areas. Tennessee constructed the graph for the worst days (
For the Tennessee Class I areas, the overall visibility improvement necessary to reach natural conditions is the difference between baseline visibility of 30.28 deciviews for the 20 percent worst days and natural conditions of 11.05 deciviews,
As described in section III.E of this action, the LTS is a compilation of state-specific control measures relied on by the state for achieving its RPGs. Tennessee's LTS for the first implementation period addresses the emissions reductions from Federal, state, and local controls that take effect in the State from the end of the baseline period starting in 2004 until 2018. The Tennessee LTS was developed by the State, in coordination with the VISTAS RPO, through an evaluation of the following components: (1) Identification of the emission units within Tennessee and in surrounding states that likely have the largest impacts currently on visibility at the State's two Class I areas; (2) estimation of emissions reductions for 2018 based on all controls required or expected under Federal and state regulations for the 2004-2018 period (including BART); (3) comparison of projected visibility improvement with the uniform rate of progress for the State's Class I areas; and (4) application of the four statutory factors in the reasonable progress analysis for the identified emission units to determine if additional reasonable controls were required.
CAIR is also an element of Tennessee's LTS. CAIR rule revisions were approved into the Tennessee SIP in 2007 and 2009.
The emissions inventory used in the regional haze technical analyses was developed by VISTAS with assistance from Tennessee. The 2018 emissions inventory was developed by projecting 2002 emissions and applying reductions expected from Federal and state regulations affecting the emissions of VOC and the visibility-impairing pollutants NO
VISTAS developed emissions for five inventory source classifications: Stationary point and area sources, off-road and on-road mobile sources, and biogenic sources. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. VISTAS estimated emissions on a countywide level for the inventory categories of: (a) stationary area sources; (b) off-road (or non-road) mobile sources (
There are many Federal and state control programs being implemented that VISTAS and Tennessee anticipate will reduce emissions between the end of the baseline period and 2018. Emission reductions from these control programs are projected to achieve substantial visibility improvement by 2018 in the Tennessee Class I areas. The control programs relied upon by Tennessee include CAIR; EPA's NO
On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule.
Below in Tables 2 and 3 are summaries of the 2002 baseline and 2018 estimated emission inventories for Tennessee.
VISTAS performed modeling for the regional haze LTS for the 10 southeastern states, including Tennessee. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. VISTAS used the following modeling system:
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CMAQ modeling of regional haze in the VISTAS region for 2002 and 2018 was carried out on a grid of 12x12 kilometer cells that covers the 10 VISTAS states (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia) and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 kilometer grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. VISTAS conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The VISTAS states modeling was developed consistent with EPA's
VISTAS examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. VISTAS used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once VISTAS determined the model performance to be acceptable, VISTAS used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
In accordance with 40 CFR 51.308(d)(3), the State of Tennessee provided the appropriate supporting documentation for all required analyses used to determine the State's LTS. The technical analyses and modeling used to develop the glidepath and to support the LTS are consistent with EPA's RHR, and interim and final EPA Modeling Guidance. EPA accepts the VISTAS technical modeling to support the LTS and determine visibility improvement for the uniform rate of progress because the modeling system was chosen and simulated according to EPA Modeling Guidance. EPA agrees with the VISTAS model performance procedures and results, and that the CMAQ is an appropriate tool for the regional haze assessments for the Tennessee LTS and regional haze SIP.
An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, source sectors, and geographic areas, VISTAS developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.
Regarding which pollutants are most significantly impacting visibility in the VISTAS region, VISTAS' contribution assessment, based on IMPROVE monitoring data, demonstrated that ammonium sulfate is the major contributor to PM
VISTAS grouped its 18 Class I areas into two types, either “coastal” or “inland” (sometimes referred to as “mountain”) sites, based on common/similar characteristics (
Results from VISTAS' emission sensitivity analyses indicate that sulfate particles resulting from SO
The VISTAS sensitivity analyses show that VOC emissions from biogenic sources such as vegetation also contribute to visibility impairment. However, control of these biogenic sources of VOC would be extremely difficult, if not impossible. The anthropogenic sources of VOC emissions are minor compared to the biogenic sources. Therefore, controlling anthropogenic sources of VOC emissions would have little if any visibility benefits at the Class I areas in the VISTAS region, including Tennessee. The sensitivity analyses also show that reducing primary carbon from point sources, ground level sources, or fires is projected to have small to no visibility benefit at the VISTAS Class I areas.
Tennessee considered the factors listed in under 40 CFR 51.308(d)(3)(v) and in section III.E. of this action to develop its LTS as described below. Tennessee, in conjunction with VISTAS, demonstrated in its SIP that elemental carbon (a product of highway and non-road diesel engines, agricultural burning, prescribed fires, and wildfires), fine soils (a product of construction activities and activities that generate fugitive dust), and ammonia are relatively minor contributors to visibility impairment at the Class I areas in Tennessee. Tennessee considered agricultural and forestry smoke management techniques to address visibility impacts from elemental carbon. TDEC is currently working with the Tennessee Division of Forestry to develop a smoke management program that utilizes basic smoke management practices and addresses the issues laid out in the EPA's 1998
The emissions sensitivity analyses conducted by VISTAS predict that reductions in SO
Taking the VISTAS sensitivity analyses results into consideration, Tennessee concluded that reducing SO
SO
As discussed in section V.C.3. of this notice, through comprehensive evaluations by VISTAS and the Southern Appalachian Mountains Initiative (SAMI),
Tennessee's SO
TDEC identified 15 emission units at 10 facilities in Tennessee (see Table 4) with SO
TDEC analyzed whether SO
Bowater is a Kraft pulp mill with three coal-fired boilers burning 1.1 percent sulfur coal. Bowater presented information and data in its reasonable progress control analysis that led TDEC to conclude that Bowater should not be required to install SO
INVISTA produces polymers and fibers and operates three coal-fired boilers. SO
A wet FGD system was determined to be a technically feasible option for control of SO
Similarly, an SDA system was determined to be a technically feasible control option but also cost prohibitive. The cost-effectiveness of applying SDA to this unit is estimated to be at least $4,000 per ton of SO
As was the case for FGD and SDA, TDEC determined that the DSI system was also technically feasible but cost prohibitive as a control option. The cost-effectiveness of applying DSI was estimated to be at least $4,037 per ton of SO
Finally, INVISTA evaluated switching to a lower sulfur (0.75 percent) western sub-bituminous coal, and determined that this is both a technologically feasible and cost effective control technology option. The cost-effectiveness was calculated to be approximately $1,225 per ton of SO
As noted in EPA's Reasonable Progress Guidance, the states have wide latitude to determine appropriate additional control requirements for ensuring reasonable progress, and there are many ways for a state to approach identification of additional reasonable measures. In determining reasonable progress, states must consider, at a minimum, the four statutory factors, but states have flexibility in how to take these factors into consideration.
Tennessee applied the methodology developed by VISTAS for identifying appropriate sources to be considered for additional controls under reasonable progress for the implementation period addressed by this SIP, which ends in 2018. Using this methodology, TDEC first identified those emissions and emissions units most likely to have an impact on visibility in the State's Class I areas. Units with emissions of SO
Having reviewed TDEC's methodology and analyses presented in the SIP materials prepared by TDEC, EPA is proposing to approve Tennessee's conclusion that no further controls are reasonable for this implementation period for the reviewed sources. EPA agrees with the State's approach of identifying the key pollutants contributing to visibility impairment at its Class I areas, and consider their methodology to identify sources of SO
EPA also finds that TDEC's conclusion regarding the fuel switching option evaluated for INVISTA acceptable. Although the $1,225 per ton of SO
Three of the 15 emission units identified for a reasonable progress control analysis are EGUs. These three EGUs are subject to CAIR and were also found to be subject to BART, as discussed in section V.C.6. These three EGUs, located at two facilities, are Tennessee Valley Authority
To determine whether any additional controls beyond those required by CAIR would be considered reasonable for Tennessee's EGUs for this first implementation period, TDEC evaluated the SO
To further evaluate whether CAIR requirements will satisfy reasonable progress for SO
Since EPA made the determination in CAIR that the earliest reasonable deadline for compliance for reducing emissions was 2015, TDEC concluded that the emission reductions required by CAIR constitute reasonable measures for Tennessee EGUs during this first assessment period (between baseline and 2018). In addition, TDEC notes that while the reasonable progress evaluation only applies to existing sources, the State will continue to follow the visibility analysis requirements as part of all new major source review (NSR) and prevention of significant deterioration (PSD) permitting actions.
Prior to the CAIR remand by the DC Circuit, EPA believed the State's demonstration that no additional controls beyond CAIR are reasonable for SO
Six of the 15 non-EGU emission units in Tennessee falling within the sulfate AOI of a Class I area are industrial facilities that TDEC found to be also subject to BART: Aluminum Company of America (Alcoa)—South Plant, units 09, 16, 17, and Eastman Chemical Company, units 021520, 020101, 261501. TDEC has concluded that, for this implementation period, the application of BART constitutes reasonable progress for these six units and thus, is not requiring any additional controls for reasonable progress. As discussed in EPA's Reasonable Progress Guidance, since the BART analysis is based, in part, on an assessment of many of the same factors that must be addressed in establishing the RPG, EPA believes it is reasonable to conclude that any control requirements imposed in the BART determination also satisfy the RPG-related requirements for source review in the first implementation period.
Four other facilities have emission units that were later determined to be exempt from preparing a reasonable progress control analysis. The emission unit 001 at Intertrade Holdings, Inc. that was to be considered for evaluation for reasonable progress shut down prior to analysis. In addition, TDEC identified three emission units that should not have been included on the list of sources to evaluate because updated information showed they did not meet Tennessee's minimum threshold for evaluation for reasonable progress control. A.E. Staley Manufacturing (now Tate & Lyle) Company, unit 005, was already subject to emission limits contained in a construction permit issued March 9, 2007, that reduces SO
BART is an element of Tennessee's LTS for the first implementation period. The BART evaluation process consists of three components: (a) An identification of all the BART-eligible sources, (b) an assessment of whether the BART-eligible sources are subject to BART and (c) a determination of the BART controls. These components, as addressed by TDEC and TDEC's findings, are discussed as follows.
The first phase of a BART evaluation is to identify all the BART-eligible sources within the state's boundaries. TDEC identified the BART-eligible sources in Tennessee by utilizing the three eligibility criteria in the BART Guidelines (70 FR 39158) and EPA's regulations (40 CFR 51.301): (1) One or more emission units at the facility fit within one of the 26 categories listed in the BART Guidelines; (2) emission unit(s) was constructed on or after August 6, 1962, and was in existence prior to August 6, 1977; and (3) potential emissions of any visibility-impairing pollutant from subject units are 250 tons or more per year.
The BART Guidelines also direct states to address SO
The second phase of the BART evaluation is to identify those BART-eligible sources that may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area,
The BART Guidelines allow states to use the CALPUFF
The BART Guidelines also recommend that states develop a modeling protocol for making individual source attributions, and suggest that states may want to consult with EPA and their RPO to address any issues prior to modeling. The VISTAS states, including Tennessee, developed a “Protocol for the Application of CALPUFF for BART Analyses.” Stakeholders, including EPA, FLMs, industrial sources, trade groups, and other interested parties, actively participated in the development and review of the VISTAS protocol.
VISTAS developed a post-processing approach to use the new IMPROVE equation with the CALPUFF model results so that the BART analyses could consider both the old and new IMPROVE equations. TDEC sent a letter to EPA justifying the need for this post-processing approach, and the EPA Region 4 Regional Administrator sent the State a letter of approval dated October 5, 2007. Tennessee's justification included a method to process the CALPUFF output and a rationale on the benefits of using the new IMPROVE equation. The State's description of the new post-processing methodology and the State and Region 4 letters are located in the Tennessee regional haze SIP submittal and the docket for this action.
For states using modeling to determine the applicability of BART to single sources, the BART Guidelines note that the first step is to set a contribution threshold to assess whether the impact of a single source is sufficient to cause or contribute to visibility impairment at a Class I area. The BART Guidelines state that, “A single source that is responsible for a 1.0 deciview change or more should be considered to `cause' visibility impairment.” The BART Guidelines also state that “the appropriate threshold for determining whether a source `contributes to visibility impairment' may reasonably differ across states,” but, “[a]s a general matter, any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 deciviews.” The Guidelines affirm that states are free to use a lower threshold if they conclude that the location of a large number of BART-eligible sources in proximity of a Class I area justifies this approach.
Tennessee used a contribution threshold of 0.5 deciview for determining which sources are subject to BART. EPA agrees with the State's rationale for choosing this threshold value. There are a limited number of BART-eligible sources in close proximity to each of the State's Class I areas, and the overall impact of the BART-eligible sources on visibility near Class I areas is relatively minimal. In addition, the results of the visibility impacts modeling demonstrated that the majority of the individual BART-eligible sources had visibility impacts well below 0.5 deciview.
TDEC demonstrated that there is a clear spatial separation of sources across the State and little risk of multiple source interactions. For example, there are no clusters of Tennessee BART-eligible sources near the Great Smoky Mountains and Joyce Kilmer Class I areas. In addition, only two sources, TVA-Bull Run and Alcoa, are located within 32 kilometers from each other and the remainder of the State's BART-eligible sources are over 100 kilometers from one another with respect to these Class I areas. Similarly, with regard to Class I areas in nearby states, Tennessee's BART sources are all located greater than 180 kilometers from the Class I areas of Mingo Wilderness (MO), Sipsey Wilderness (AL), and Mammoth Cave (KY).
Tennessee initially identified 16 facilities with BART-eligible sources. The State subsequently determined that four sources are exempt from being considered BART-eligible. Liberty Fibers Corporation has permanently shut down, and the BART-eligible boilers located at the facility have been dismantled. Intertrade Holdings, Inc. has permanently shut down the acid plant that was determined to be BART-eligible. Similarly, the power boiler at the Weyerhaeuser facility (formerly Willamette Industries) in Sullivan County has been retired and is no longer BART-eligible. Finally, Holston Army Ammunition Plant requested and was issued an operating permit (February 25, 2008) with a 249 tons per year Federally enforceable emission limit for NO
Tennessee
The remaining eight sources demonstrated that they are exempt from being subject to BART by modeling less than a 0.5 deciview visibility impact at the affected Class I areas. The two Tennessee EGU sources, TVA—Cumberland and TVA—Bull Run, only modeled PM
Four BART-eligible sources (
In accordance with the BART Guidelines, to determine the level of control that represents BART for each source, the State first reviewed existing controls on these units to assess whether these constituted the best controls currently available, then identified what other technically feasible controls are available, and finally, evaluated the technically feasible controls using the five BART statutory factors. The State's evaluations and conclusions, and EPA's assessment, are summarized below.
The Alcoa facility, located in Alcoa, Tennessee, is a BART-eligible source containing 24 BART-eligible emission units. Potlines 1 and 2 emit SO
TDEC determined that NO
The remaining 21 BART-eligible emission units at Alcoa are material handling and transfer operations that support the potlines and the anode bake furnace. Two of these support operations are negligible sources of VOC. TDEC has determined that controlling anthropogenic sources of VOC emissions would have little, if any, visibility benefits at the Class I areas in or nearby Tennessee, and, thus, as noted in section V.C.1 of this action, Tennessee did not further evaluate VOC emissions sources for potential controls under BART or reasonable progress.
EPA agrees with Tennessee's analyses and conclusions for the BART emission units located at this Alcoa facility. EPA has reviewed the Tennessee analyses and concluded they were conducted in a manner that is consistent with EPA's BART Guidelines and EPA's
The Eastman Chemical facility located in Kingsport, Tennessee (“Kingsport plant”) is a BART-eligible source with nine emission units including: Five tangentially fired 655 million British Thermal Units per hour (MMBtu/hr), pulverized coal boilers (boilers 25-29), two cracking furnaces, a batch chemical manufacturing operation, and a 500 MMBtu/hr stoker boiler (boiler 24).
Boilers 25-29 are used for co-production of steam and electricity in support of manufacturing operations at the Kingsport plant.
For NO
The environmental factors include: (a) disposal of fly ash rather than sales to the concrete industry would increase use of aggregate by the cement manufacturing industry and increase waste being sent to landfills, and (b) an increase in emissions associated with burning coal (
The two cracking furnaces are used to fire natural gas to provide heat to drive a cracking reaction of acetic acid that occurs inside the tube assemblies of the furnaces. The furnaces also burn a fuel gas which is off-gassed from the manufacturing process. SO
The NO
The batch chemical manufacturing operation has an operating permit to emit NO
SO
Boiler 24 burns bituminous coal along with wastewater treatment biosludge and liquid chemical wastes. This unit is used for co-production of steam and electricity in support of manufacturing operations at the Kingsport plant as well as the destruction of biosludge from Eastman's wastewater treatment facility and waste chemicals.
Boiler 24 is equipped with an ESP for PM, and an overfire air system is built into the stoker design for NO
Eastman Chemical evaluated several SO
EPA reviewed the TDEC BART determinations summarized above and agrees with Tennessee's analyses and conclusions for BART for Eastman Chemical, because the analyses were conducted consistent with EPA's BART Guidelines and EPA's
The TVA Cumberland Fossil Plant has two pulverized-coal-fired steam generators that are considered BART-eligible. Units 1 and 2 are nominally rated at about 1,325 megawatts each.
EGU Units 1 and 2 are both equipped with FGD for SO
TDEC determined that for the TVA Cumberland Fossil Plant, no additional controls for PM will be required. Since the facility is currently well controlled for SO
EPA agrees with Tennessee's analyses and conclusions for BART for the TVA Cumberland facility for PM. EPA notes that while TVA Cumberland presently operates a sorbent injection system on each unit to reduce SO
Prior to the CAIR remand by the, EPA believed the State's demonstration that CAIR satisfies BART for SO
The DuPont-Old Hickory Plant operates two BART-eligible units, boilers 20 and 24. Boiler 20 is a tangentially-fired coal unit with a rated capacity of 445 MMBtu/hr. Boiler 24 is a tangentially fired coal unit with a rated capacity of 315 MMBtu/hr. Boiler 24 is presently operated only during periods of peak demand, which typically occur in the winter, when boiler 20 has insufficient capacity to meet both the process and space heating demands of the facility.
TDEC evaluated nine control strategies for reducing SO
The emission limits adopted by TDEC, and incorporated into DuPont's title V operating permit, reduce the combined allowable SO
EPA agrees with Tennessee's analyses and conclusions for BART for the DuPont-Old Hickory Plant because the analyses were conducted in a manner that is consistent with EPA's BART Guidelines and EPA's
The BART determinations for each of the facilities discussed above and the resulting BART emission limits were adopted by Tennessee into the State's regional haze SIP. TDEC incorporated the BART emission limits into state operating permits, and submitted these permits as part the State's regional haze SIP. The BART limits will also be added to the facilities' title V permits according to the procedures established in 40 CFR part 70 or 40 CFR part 71. The BART limits adopted in the SIP are as follows: (a) for Alcoa, a limitation of three percent sulfur in the petroleum coke used in the facility's electrode production operations; (b) for Eastman Chemical, a condition requiring compliance with more stringent SO
Tennessee is requiring Eastman Chemical, DuPont-Old Hickory and Alcoa to comply with these BART emission limits as follows: “
The RHR at 40 CFR 51.308(d)(1) requires states to establish RPGs for each Class I area within the state
As shown in Table 6 below, Tennessee's RPGs for the 20 percent worst days provide greater visibility improvement by 2018 than the uniform rate of progress for the State's Class I areas (
The RPGs for the Class I areas in Tennessee are based on modeled projections of future conditions that were developed using the best available information at the time the analysis was done. These projections can be expected to change as additional information regarding future conditions becomes available. For example, new sources may be built, existing sources may shut down or modify production in response to changed economic circumstances, and facilities may change their emission characteristics as they install control equipment to comply with new rules. It would be both impractical and resource-intensive to require a state to continually adjust the RPG every time an event affecting these future projections changed.
EPA recognized the problems of a rigid requirement to meet a long-term goal based on modeled projections of future visibility conditions, and addressed the uncertainties associated with RPGs in several ways. EPA made clear in the RHR that the RPG is not a mandatory goal.
EPA anticipates that the Transport Rule will result in similar or better improvements in visibility than predicted from CAIR. Because the Transport Rule is not final, however, EPA does not know at this time how it will affect any individual Class I area and cannot accurately model future conditions based on its implementation. By the time Tennessee is required to undertake its five year progress review, however, it is likely that the impact of the Transport Rule and other measures can be meaningfully assessed. If, in particular Class I areas, the Transport Rule does not provide similar or greater benefits than CAIR and meeting the RPGs at one of its Class I Federal areas is in jeopardy, the State will be required to address this circumstance in its five year review. Accordingly, EPA proposes to approve Tennessee's RPGs for the Great Smoky Mountains National Park and the Joyce Kilmer-Slickrock Wilderness Area.
EPA's visibility regulations direct states to coordinate their RAVI LTS and monitoring provisions with those for regional haze, as explained in sections III.F and III.G. of this action. Under EPA's RAVI regulations, the RAVI portion of a state SIP must address any integral vistas identified by the FLMs pursuant to 40 CFR 51.304. An
In the April 4, 2008, submittal, TDEC updated its visibility monitoring program and developed a LTS to address regional haze. Also in this submittal, TDEC affirmed its commitment to complete items required in the future under EPA's RHR. Specifically, TDEC made a commitment to review and revise its regional haze implementation plan and submit a plan revision to EPA by July 31, 2018, and every 10 years thereafter.
The primary monitoring network for regional haze in Tennessee is the IMPROVE network. As discussed in section V.B.2. of this notice, there is currently one IMPROVE site in Tennessee, which serves as the monitoring site for both the Great Smoky Mountains National Park and Joyce Kilmer-Slickrock Wilderness Area, both of which lie partly in Tennessee and partly in North Carolina.
IMPROVE monitoring data from 2000-2004 serves as the baseline for the regional haze program, and is relied upon in the April 4, 2008, regional haze submittal. In the submittal, Tennessee states its intention to rely on the IMPROVE network for complying with the regional haze monitoring requirement in EPA's RHR for the current and future regional haze implementation periods.
Data produced by the IMPROVE monitoring network will be used nearly continuously for preparing the five-year progress reports and the 10-year SIP revisions, each of which relies on analysis of the preceding five years of data. The Visibility Information Exchange Web System (VIEWS) Web site has been maintained by VISTAS and the other RPOs to provide ready access to the IMPROVE data and data analysis tools. Tennessee is encouraging VISTAS and the other RPOs to maintain the VIEWS or a similar data management system to facilitate analysis of the IMPROVE data.
In addition to the IMPROVE measurements, there is long-term limited monitoring by FLMs which provides additional insight into progress toward regional haze goals. Such measurements include:
• Web cameras operated by the National Park Service at Look Rock, Tennessee at the Great Smoky Mountains National Park
• An integrating nephelometer for continuously measuring light scattering, operated by the National Park Service at Look Rock, Tennessee
• A Tapered Element Oscillating Microbalance for continuously measuring PM
In addition, Tennessee and the local air agencies in the State operate a comprehensive PM
In December 2006 and in May 2007, the State Air Directors from the VISTAS states held formal interstate consultation meetings. The purpose of the meetings was to discuss the methodology proposed by VISTAS for identifying sources to evaluate for reasonable progress. The states invited FLM and EPA representatives to participate and to provide additional feedback. The Directors discussed the results of analyses showing contributions to visibility impairment from states to each of the Class I areas in the VISTAS region.
TDEC has evaluated the impact of Tennessee sources on Class I areas in neighboring states. The state in which a Class I area is located is responsible for determining which sources, both inside and outside of that state, to evaluate for reasonable progress controls. Because many of these states had not yet defined their criteria for identifying sources to evaluate for reasonable progress, Tennessee applied its AOI methodology to identify sources in the State that have emission units with impacts large enough to potentially warrant further evaluation and analysis. The State identified 13 emission units in Tennessee with a contribution of one percent or more to the visibility impairment at the following four Class I areas in three neighboring states: Cohutta Wilderness area, Georgia; Mammoth Cave National Park, Kentucky; and Linville Gorge and Shining Rock Wilderness areas, North Carolina. Based on an evaluation of the four reasonable progress statutory factors, Tennessee determined that there are no additional control measures for these Tennessee emission units that would be reasonable to implement to mitigate visibility impacts in Class I areas in these neighboring states. TDEC has consulted with these states regarding its reasonable progress control evaluations showing no cost-effective controls available for those emission units in Tennessee contributing at least one percent to visibility impairment at Class I areas in the states. Additionally, TDEC sent letters to the other states in the VISTAS region documenting its
Regarding the impact of sources outside of the State on Class I areas in Tennessee, TDEC sent letters to Alabama, Arkansas, Georgia, Kentucky, Missouri, Mississippi, North Carolina, South Carolina, Virginia and West Virginia pertaining to emission units within these states that the State believes contributed one percent or higher to visibility impairment in the Tennessee Class I areas. At that time, these neighboring states were still in the process of evaluating BART and reasonable progress for their sources. Any controls resulting from those determinations will provide additional emissions reductions and resulting visibility improvement, which gives further assurances that Tennessee will achieve its RPGs. Therefore, to be conservative, Tennessee opted not to rely on any additional emission reductions from sources located outside the State's boundaries beyond those already identified in the State's regional haze SIP submittal and as discussed in section V.C.1. (Federal and state controls in place by 2018) of this action.
Tennessee received letters from the Mid-Atlantic/Northeast Visibility Union (MANE-VU) RPO States of Maine, New Jersey, New Hampshire, and Vermont in the spring of 2007, stating that based on MANE-VU's analysis of 2002 emissions data, Tennessee contributed to visibility impairment to Class I areas in those states. The MANE-VU states identified five TVA EGU stacks
EPA finds that Tennessee has adequately addressed the consultation requirements in the RHR and appropriately documented its consultation with other states in its SIP submittal.
Through the VISTAS RPO, Tennessee and the nine other member states worked extensively with the FLMs from the U.S. Departments of the Interior and Agriculture to develop technical analyses that support the regional haze SIPs for the VISTAS states. The proposed regional haze plan for Tennessee was out for public comment and FLM discussions in the November to December 2007 period. Tennessee subsequently modified the plan to address comments received on this initial version and reissued it for a second round of public participation in the February to March 2008 period. The FLMs submitted no significant adverse comments regarding the State's regional haze SIP. The FLMs requested that Tennessee add more details to support the State's conclusions. Additionally, some of the FLM staff had difficulty in navigating through the compact disc of electronic support materials. Improvements were made to improve navigability. To address the requirement for continuing consultation procedures with the FLMs under 40 CFR 51.308(i)(4), TDEC made a commitment in the SIP to ongoing consultation with the FLMs on regional haze issues throughout implementation of its plan, including annual discussions. TDEC also affirms in the SIP that FLM consultation is required for those sources subject to the State's NSR regulations.
As also summarized in section V.D. of this action, consistent with 40 CFR 51.308(g), TDEC affirmed its commitment to submitting a progress report in the form of a SIP revision to EPA every five years following this initial submittal of the Tennessee regional haze SIP. The report will evaluate the progress made towards the RPGs for each mandatory Class I area located within Tennessee and in each mandatory Class I area located outside Tennessee which may be affected by emissions from within Tennessee. Tennessee also offered recommendations for several technical improvements that, as funding allows, can support the State's next LTS. These recommendations are discussed in detail in the Tennessee submittal in Appendix K.
If another state's regional haze SIP identifies that Tennessee's SIP needs to be supplemented or modified, and if, after appropriate consultation Tennessee agrees, today's action may be revisited, or additional information and/or changes will be addressed in the five-year progress report SIP revision.
EPA is proposing a limited approval and a limited disapproval of a revision to the Tennessee SIP submitted by the State of Tennessee on April 4, 2008, as meeting some of the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308, as described previously in this action.
The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”
Under the Paperwork Reduction Act, 44 U.S.C. 3501
The RFA generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new
Moreover, due to the nature of the Federal-state relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds.
Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that today's proposal does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
42 U.S.C. 7401
Federal Communications Commission.
Notice of proposed rulemaking.
The purpose of this document is to seek comment on a proposal to extend the Commission's communications outage reporting requirements to interconnected Voice over Internet Protocol (VoIP) service providers and broadband Internet Service Providers (ISPs). This action will help ensure that our current and future 9-1-1 systems are as reliable and resilient as possible and assist our Nation's preparedness for man-made or natural disasters, such as Hurricane Katrina.
Submit comments on or before August 8, 2011. Submit reply comments on or before October 7, 2011. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before August 8, 2011.
You may submit comments, identified by PS Docket No. 11-82, by any of the following methods:
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•
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Gregory Intoccia, Public Safety and Homeland Security Bureau, at (202) 418-1300, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554; or via the Internet to
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an e-mail to
1. Broadband technologies delivering communications services to end users have changed behaviors and revolutionized expectations in American life and are fast becoming substitutes for communications services provided by older, legacy communications technologies. In 2010, 28 percent of the more than 89 million residential telephone subscriptions were provided by interconnected VoIP providers. Broadband networks now carry a substantial volume of 9-1-1 traffic. They are also a significant form of communications in times of crisis. Communications outages to broadband facilities threaten the public's ability to summon in emergency situations. The National Security and Emergency Preparedness posture of the United States depends on the availability of broadband communications during times of emergencies, and it is one of the core responsibilities of the Commission. In 2010 alone, there were a number of significant outages to broadband networks and services in various parts of the Nation.
2. The resilience of the broadband communications infrastructure directly impacts the emergency preparedness and readiness posture of the United States. Outages to broadband networks can have a significant impact on emergency services, consumers, businesses, and governments. The most practical, effective way to maintain emergency preparedness and readiness is to work continuously to minimize the incidence of routine outages.
3. Since 2005, the Commission has required providers of interconnected VoIP services to supply 9-1-1 emergency calling capabilities to their customers as a mandatory feature of the service. “Interconnected” VoIP services allow a user generally to receive calls from and make calls to the legacy telephone network. Under the Commission's rules, interconnected VoIP providers must deliver all 9-1-1 calls to the local emergency call center; deliver the customer's call-back number and location information where the emergency call center is capable of receiving it; and inform their customers of the capabilities and limitations of their VoIP 9-1-1 service. By Presidential Directives and Executive Orders the FCC has been assigned a critical role in the Nation's emergency preparedness and response efforts. Presidential Directives and Executive Orders and their implementing documents charge the FCC with ensuring the resiliency and reliability of the Nation's commercial and public safety communications infrastructure.
4. The Commission has many years of experience working with communications providers to improve communications resiliency and emergency readiness. The Commission's current outage reporting rules, applicable to legacy communications systems, allows the Commission staff to collect and analyze key outage data that has helped to reduce outages. With the percent of VoIP-only households and businesses increasing, it is essential for safety reasons that we extend outage reporting to VoIP.
5. The Commission's existing approach includes the analysis and response to information received during an emergency. During Hurricane Katrina, the Commission's outage reporting data was the Federal government's primary and best source of information about the condition of critical communications infrastructure in the disaster area. Using this information the Commission was able to contact affected reporting providers to establish an
6. Currently, only providers of legacy circuit-switched voice and/or paging communications over wireline, wireless, cable, and satellite communications services must report communications outages. Commission analysis of industry-wide outage reports has led to improvements in the engineering, provisioning, and deployment of communications infrastructure and services. The Commission has been able to share its analysis with members of industry, providing an understanding of recurring problems nationwide that an individual provider cannot know by itself. This process has also made communications networks more robust
7. In this proceeding, we seek to extend these benefits to the broadband communications networks frequently used for emergency response today. We propose to extend the Commission's Part 4 communications outage reporting requirements to include both interconnected VoIP service providers and broadband ISPs. This change would allow the Commission, and other Federal agencies, to track and analyze information on outages affecting broadband networks. The availability of this information would also help the Commission determine the extent of the problem nationwide, identify recurring problems, determine whether action can be taken immediately to help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for disasters. Our proposed action will allow the Commission to use the same successful process it currently uses with wireline and wireless providers to refine best practices to prepare broadband communications networks better for emergency situations.
8. In this
9. We encourage comments on the thresholds or circumstances that should be included to improve our ability to address communication system vulnerabilities and to help prevent future outages through the development and refinement of best practices. We encourage interested parties to address these issues in the contexts of interconnected VoIP service and broadband Internet service. We also encourage commenters to address how the proposed information collection would facilitate best practices development and increased network security, reliability and resiliency throughout the United States and its Territories. We also seek comment on sources of authority.
10. This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due August 8, 2011. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
11. In this section, we review the key prior Commission policies and results of those policies leading up to the present rules and the current proposal for extending the Commission's outage reporting requirements to interconnected VoIP service providers and broadband Internet service providers. In its initial 1992
12. The Commission uses outage information submitted pursuant to Part 4 of its rules to, among other things, address communication system vulnerabilities and help prevent future outages. The Commission staff accomplishes this objective by using statistically meaningful trends in data as well as associated technical analysis to gather communications providers together in coordinated efforts to improve security, reliability and resiliency. Where necessary, the Commission also recommends policy changes to address persistent problems. The Commission works with each individual reporting service provider to monitor and address specific communications vulnerabilities identified in outage reports.
13. As a result of reporting pursuant to the Commission's Part 4 outage reporting rules, positive results have been achieved. For example, the frequency of wireline outages, which had spiked in 2008, has dramatically decreased since the issue was identified through the Commission's ongoing analyses of monthly wireline outages. Estimated lost 9-1-1 calls due to wireline outages were reduced by more than 50 percent from peak when the Commission worked with the Network Reliability Steering Committee (NRSC) to reduce wireline outages. As a result of the conclusions drawn and the additional work of the NRSC, providers were able to take corrective action. These reductions occurred because of the Commission's analysis of outage reporting data and the sharing of data among Commission and industry network experts. Thus the Commission's existing outage reporting has increased the resiliency of the communications infrastructure and increased the availability of public safety communication services.
14. On March 16, 2010, the Commission delivered to Congress the National Broadband Plan, which recommended that the Commission extend its Part 4 outage reporting rules to broadband ISPs and interconnected VoIP service providers as “the lack of data limits our understanding of network operations and of how to prevent future outages.”
15. In July 2010, the Public Safety and Homeland Security Bureau released a
16. Interconnected VoIP services increasingly are viewed by consumers as a substitute for traditional telephone service. This is also reflected in our 9-1-1 emergency call system today, where we estimate that approximately 28 percent of residential wireline 9-1-1 calls are made using VoIP service. In keeping with increased public reliance on interconnected VoIP services, we propose to extend our outage reporting rules to interconnected VoIP service providers. In 2010, there were 29 million interconnected residential and business VoIP subscriptions in the United States. Between June 2009 and June 2010, interconnected residential and business VoIP subscriptions increased from 24 million to 29 million and retail switched access lines decreased from 133 million to 122 million. Unlike wireline service, currently the Commission has no mechanism to identify outages of VoIP service that impact end users and cannot address the cause of 9-1-1 outages relating to VoIP service. Applying outage reporting requirements to these services brings the reporting requirements into line with existing E9-1-1 obligations.
17. We propose to apply our outage reporting requirements to both facilities-based and non-facilities-based interconnected VoIP service providers. Both groups are subject to our E9-1-1 obligation. A reporting requirement that extends only to facilities-based interconnected VoIP service providers would not result in reporting of all significant VoIP service outages experienced by end users and may put in jeopardy the ability to receive 9-1-1 calls. Our current rules require communications providers to report on service outages that affect their customers even if they do not own or operate the facilities that failed. We seek comment on this proposal.
18. Currently, under the Commission's Part 4 outage reporting rules, an “outage” is defined to include “a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider's network.” Our rules tailor the definition of a reportable significant degradation to communications over cable, telephony carrier tandem, satellite, System Signaling 7 (“SS7”), wireless, or wireline facilities. Broadband networks operate differently than legacy networks, so the impact of outages is likely to be different. We seek comment on the definition of “outage” as applicable to these providers. We believe that a complete loss of the ability to complete calls should be included. We seek comment on whether there should also be a threshold based on lost or delayed packets. Should the Commission use a concept such as “loss of generally-useful availability or connectivity” and if so, how should we define it? Should we adopt the metrics used by the Internet Engineering Task Force (IETF), such as packet loss, round-trip latency, and jitter? The Commission recognizes that wireless and satellite networks include specific latency challenges not found in wireline-only networks. Should the thresholds be altered to address the unique architectural characteristics and challenges of wireless, satellite, cable, and wireline systems used by interconnected VoIP service providers? If the thresholds need to be altered, what values should be used to represent the loss of generally-useful availability and connectivity? How should the concept itself be revised to provide more useful information for analysis purposes? What voice quality-related network metrics are routinely reported to operations support systems in carrier-operated VoIP architectures? Do the Real-time Transport Control Protocol (RTCP) round-trip and Session Initiation Protocol (SIP) Event Package for Voice Quality Reporting provide guidance for suitable metrics that are already being collected for purposes other than outage reporting? How should the number of potentially affected users be counted for interconnected VoIP service providers? Can the number of assigned telephone numbers for non-mobile VoIP service users be used in a manner similar to what is used for wireline service providers? We recognize the difficulty of distinguishing precisely when a VoIP end system cannot place a call as opposed to when it is simply temporarily disconnected from the network due to user choice or home network failure. Can statistical measures that compare typical to current device registration counts (
19. For wireless service providers, the current rules require the service provider to estimate the simultaneous call capacity lost and then multiply the result by a concentration ratio of eight (to convert the number of users affected to the number of potentially affected users). Should a similar construct be used for mobile VoIP service users? Is there a direct estimate of the number of potentially affected users that would be preferable? For both wireline and wireless service providers, should the failure of core routers, network servers, SIP proxy servers, Serving General Packet Radio Service (GPRS) and Gateway GPRS support nodes, call session control function (CSCF), home subscriber servers (HSS), root name servers, provider-operated Domain Name System (DNS) servers, Dynamic Host Control Protocol (DHCP) servers, Call Agents, Session Border Controllers, Signaling Gateways, or some other type of communications equipment be reportable similar to the current reporting requirement for Mobile Switching Center failures? Should special considerations be given to services provided via VoIP to PSAPs? How should outages that are observable by end users as performance degradations (
20. Based on how interconnected VoIP service is typically configured and provided, we propose that a significant degradation of interconnected VoIP service exists and must be reported when an interconnected VoIP service provider has experienced an outage or service degradation for at least 30 minutes: (a) On any major facility (
21. Interconnected VoIP services ride over broadband networks. If the underlying communications network fails, the VoIP service, including its Commission-mandated 9-1-1
22. We seek comment on whether both facilities-based and non-facilities based broadband ISPs should be required to report outages that meet a certain threshold. Inclusion of both of these types of providers we believe would ensure outage reporting covers Internet consumers and businesses that purchase Internet access through less traditional access arrangements (
23. Some broadband ISPs provide Internet access directly connecting to end users, while others provide the connectivity and related services needed to establish and maintain end-to-end IP communications among independently-operated networks. While we identify two broad categories of broadband ISPs, we seek comment on whether there are other categories of ISPs the Commission should consider for outage reporting purposes.
24. A broadband Internet access service provider aggregates end-user communications, usually within a specific geographic region. For this proceeding, we propose to define a “broadband Internet access service provider” as a provider of mass-market retail service by wire or radio that is able to support interconnected VoIP service as defined in our E11 rules. Alternatively, we could define a “broadband Internet access service provider” as a provider of mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term would also encompass providers of any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence. We seek comment on this alternative approach and any other alternative definitions.
25. We propose to define a “broadband backbone ISP” to be one that provides long-haul transmission for one or more broadband Internet access service providers (
26. We distinguish between broadband Internet access service providers and broadband backbone ISPs because of the different roles that they perform. Often a single organization may fulfill both types of broadband ISP roles, providing roles as broadband Internet access service provider and as broadband backbone ISP. We seek comment on the definitions that we should use for purposes of outage reporting.
27.
28. Broadband Internet access service providers are the conduit for delivering broadband services to the American public and business community. When outages occur that severely degrade the delivery of the broadband services, end users are negatively affected, which can include 9-1-1 services. Without a reporting requirement, however, it is nearly impossible to determine the extent, the effect, and the consequences of broadband outages.
29. Broadband Internet access service providers continue to show significant growth in subscribership. Between 1999 and 2009, the number of fixed-location business and residential connections grew at an annual compound rate of 42 percent, increasing from 2 million to 81 million connections. This growth reflects the American public's increasing reliance on broadband Internet access service to conduct important daily communications.
30. We therefore propose to extend the outage reporting requirements in Part 4 of our rules to broadband Internet access service providers. Consistent with the current definition of “outage” in Part 4 of the Commission's rules, which places emphasis on a “significant degradation” of communications, we propose that an outage in the context of broadband Internet access service provider be defined as “the loss to the end user of generally-useful availability and Internet connectivity.”
31. Should we measure “generally-useful availability and connectivity” of broadband Internet service as it relates to a broadband Internet access service provider as the operational state in which the transmission from the end user to the broadband ISP Point of Presence (PoP) is operating as designed for normal use, the logical functions and relay systems required from ISPs are operating as designed for normal use, and the end user is not prevented by the broadband Internet access service provider from establishing communications with any destination device on the global Internet that has an assigned Internet Protocol address?
32. We seek comment on whether for broadband Internet access service providers the “loss of generally-useful availability and connectivity” can be measured using the metrics defined by the IETF, such as packet loss, round-trip latency, or jitter from the source to the destination host? Are there additional metrics that should be used to trigger outage reporting? There are differences in the various architectures of different types of communications systems employed by broadband Internet access service providers that may affect the delivery of Internet services. We seek comment on the applicability of the IETF metrics and their values for these types of service providers. Based on an examination of commercial practices, and considering the apparent lack of standardized values for the metrics presented here, we believe that the appropriate values should be packet loss of one percent or more, round-trip latency of 100 ms or more, or jitter of 4 ms or more from the source to the destination host in order to trigger outage reporting. Are these values appropriate for all types of broadband Internet access service providers? Are there more appropriate values? What are they and why are they better? How should the number of potentially affected users be counted for broadband Internet access service providers? For non-mobile users, can the number of IP addresses be used as a direct estimate of the number of potentially affected non-mobile users? In the cases where Dynamic Host Configuration Protocol (DHCP) is used to assign IP addresses by Internet access service providers, how does its use affect the estimate of the number of potentially affected users given the dynamic re-use of IP addresses? Should there be a multiplier introduced to improve the estimate? For wireless service providers, the current rules require the service provider to
33. Should we require a broadband Internet access service provider to submit reports in cases similar to the current reporting requirements for voice service providers? We seek comment on requiring a report when the provider has experienced an outage or service degradation for at least 30 minutes: (a) On any major facility (
34.
35. Based on the role that they serve, we believe it possible that an outage suffered by a broadband backbone ISP could cause greater impact, as measured by the number of affected users, than a similar outage experienced by an access ISP. Such outages could severely impact the ability of users to reach 9-1-1 during an emergency. We therefore propose to require that broadband backbone ISPs report outages whenever the broadband backbone ISP experiences an outage or service degradation affecting other ISPs or end users. Reporting of these types of service disruptions would serve as a foundation for the development of network best practices to guard against future disruptions of this magnitude that have the potential to compromise public safety and have a widespread negative effect on consumers.
36. We seek comment on what threshold of disruption should constitute a reportable broadband backbone ISP service outage. Consistent with the current definition of “outage” in Part 4 of our rules that places emphasis on a “significant degradation” of communications, we propose that an outage in the context of a broadband backbone ISP be defined as the loss of “generally-useful availability and Internet connectivity.”
37. Should we define “generally-useful availability and Internet connectivity” of broadband Internet service as it relates to a broadband backbone ISP as: (a) The operational state in which the transmission between ISP PoPs is operating as designed for normal use; (b) the logical functions and relay systems required from ISPs are operating as designed for normal use; and/or (c) the connected access ISP networks are not prevented from establishing communications with any destination device on the global Internet that has an assigned Internet Protocol address. Can the “loss of generally-useful availability and connectivity” for broadband backbone ISPs be measured using the metrics defined by the IETF, including packet loss, round-trip latency, or jitter as measured from source to destination PoP? Are there additional metrics that should be used to trigger outage reporting? We seek comment on these metrics and the values in this proposal. Based on commercial practices, and considering the lack of standardized values for the metrics presented here, we believe that the appropriate values should be packet loss of one percent or more, round-trip latency of 100 ms or more, or jitter of 4 ms or more as measured from source to destination PoP in order to trigger outage reporting. Are these values appropriate for all types of broadband backbone ISPs? Are there more appropriate values? What are they and why are they better?
38. Due to the Nation's growing dependence on ISPs to deliver critical IP communication services, we seek comment on requiring a broadband backbone ISP to submit outage reports when it experiences an outage or service degradation for at least 30 minutes: (a) On any major facility (
39. In the 2004
40. For the Commission to obtain as complete a picture of service outages from interconnected VoIP service providers and broadband ISPs, and to allow the Commission to assist in facilitating a resolution of outages and preventing future outages, we propose that the outage reporting described herein be mandatory, just as it is today for services covered under our Part 4 rules. Because of the importance of the reliability and resiliency of broadband communications for the Nation's 9-1-1 system and overall emergency response, we believe mandatory reporting is appropriate. We note that a voluntary outage reporting trial was attempted, without success, prior to the imposition of our original Part 4 rules. Hence, mandatory outage reporting was adopted to ensure timely, accurate reporting.
41. We note that Japan requires outage reporting from broadband communications providers. We seek comment on what role the Japanese outage reporting requirements played in restoring communications during the recent earthquake-related events. We seek comment also on current proposals in other countries to require outage reporting by broadband communications providers and, specifically, how those proposals are tailored to ensure valuable data is collected while imposing the least amount of burden on reporting providers.
42. We seek comment on whether mandatory reporting is necessary to obtain a comprehensive view of outages experienced by customers that may impact 9-1-1 and other services. Alternatively, if we were to adopt a voluntary reporting scheme, how could the Commission be confident that it is not missing important information? What other regulatory alternatives should the Commission consider for interconnected VoIP service provider and broadband ISP outage reporting? What aspects of the information that providers share, as part of their voluntary ongoing public-private coordination, should we adopt?
43. Under our Part 4 rules, communications providers are required to submit a Notification within two hours of discovering a reportable outage. An Initial Report is due within 72 hours after discovering the outage, and a Final Report is due within 30 days after discovering the outage. Final Reports must be submitted by a person authorized by the provider to submit such reports to the Commission and to bind the provider legally to the truth, completeness, and accuracy of the information contained in the report. The Final Communications Outage Report must contain all potentially significant information known about the outage after a good faith effort has been made to obtain it, including any information that was not contained in, or that has changed from that provided in, the Initial Report. We propose to follow the same reporting process for the reporting of outages experienced by interconnected VoIP service providers and broadband ISPs. We seek comment on this proposal.
44. We currently provide an electronic reporting template to facilitate outage reporting by those types of providers currently subject to our Part 4 rules. We believe that this approach to collecting data has ensured that the Commission learns of major outages in a timely fashion and, at the same time, minimizes the amount of time and effort required to comply with the reporting requirements. We propose to utilize a very similar electronic reporting template to collect outage reports from interconnected VoIP service providers and broadband ISPs. We seek comment on this proposal.
45. We believe this process is reasonable in light of the significant benefits conferred by the ability to analyze and address network outages. In addition, we believe that interconnected VoIP service providers and broadband ISPs are currently collecting in the ordinary course of their business much of the information, and perhaps even a broader range of information, than we propose be reported. Therefore, we believe that, in the usual case, complying with our proposed reporting requirements would not result in an undue administrative burden. We seek comment on the reasonableness of the reporting process proposed herein, and we request comment on relevant types of outage information already being collected by interconnected VoIP service providers and broadband ISPs so that we could align our metrics with what is already available to them.
46. We seek comment on whether collecting and reporting as proposed would be no more burdensome for interconnected VoIP service providers and broadband ISPs than current Part 4 reporting requirements are for traditional providers. Is the burden greater on smaller VoIP service providers and smaller broadband ISPs? If so, to what degree? Are there alternative ways to accomplish the aims of this proceeding in a less burdensome manner? For example, what alternatives processes, if any, could be followed which would enable the Commission to collect the types of data specified in this proceeding without requiring a direct interface between the Commission and VoIP service providers and broadband ISPs? Analysis of outage reports by both Commission staff and reporting providers has led to a significant reduction in the frequency and scope of outages on the providers' networks. Is the burden of reporting outweighed by the benefits from the ability to analyze reported outages to help prevent future outages and assist better responses to actual outages?
47. Data collected pursuant to the Commission's outage reporting requirements is presumptively confidential. Currently, to the extent that the Commission shares the outage information it receives, sharing is done on a presumptively confidential basis pursuant to the procedures in Part 0 of our rules for sharing information not generally available for inspection. We seek comment on whether the outage information collected from broadband ISPs and interconnected VoIP service providers should also be treated as presumptively confidential. We seek comment on publicly reporting aggregated information across companies,
48. We believe the Commission has authority under the Communications Act to promulgate the reporting rules proposed here. In section 615a-1 of the Communications Act, Congress imposed a “duty” on “each IP-enabled voice
49. In addition, we believe that the Commission has authority to ensure both that interconnected VoIP providers fulfill their duty to provide 9-1-1 services and to address obstacles, such as failures in underlying communications networks, to their doing so. Under the definition of ancillary authority recently adopted by the U.S. Court of Appeals for the District of Columbia Circuit, the Commission may exercise ancillary authority when “(1) The Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities.” Both prongs are met here with respect to interconnected VoIP providers. The provision of interconnected VoIP is “communication by wire or radio” within the general jurisdictional grant of section 2 of the Act. Second, as explained above, collecting outage information from interconnected VoIP providers as proposed in this Notice is “reasonably ancillary” to ensuring that interconnected VoIP providers are able to satisfy their 9-1-1 obligations under the Act as implemented in our Part 9 rules, and to enable the Commission to assist in improving the reliability of these mandated services. We seek comment on this analysis.
50. We believe that the Commission has authority, under the test stated by the DC Circuit, to collect outage information from broadband Internet service providers. We believe that broadband services fall within the Commission's general jurisdictional grant as “communication by wire or radio.” The network outage reporting proposals for broadband Internet service providers are reasonably ancillary to ensuring that interconnected VoIP providers are able to satisfy their 9-1-1 duties under the Act. This is because Interconnected VoIP services by definition depend on broadband networks. If a broadband network fails, interconnected VoIP traffic—including calls to 9-1-1—cannot travel over that network. A broadband failure would potentially prevent interconnected VoIP providers from satisfying their duty under the Act and our rules to provide 9-1-1 services. For these reasons, and as authorized by section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), we believe we have ancillary authority to collect outage information from broadband Internet service providers. We seek comment on this analysis. We also ask commenters to address other potentially relevant sources of authority, or to otherwise explain why they believe that the Commission has no legal authority to extend outage reporting requirements in the manner proposed.
51. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed pursuant to the Commission's rules.
52. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
53. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
54. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
55. People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to
56. The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page:
57. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the
58. In 2005, the Commission adopted rules requiring providers of interconnected Voice over Internet Protocol (VoIP) service to supply E9-1-1 capabilities to their customers as a standard feature from wherever the customer is using the service. In 2008, Congress enacted the New and Emerging Technologies 9-1-1 Improvement Act of 2008 that amended the 9-1-1 Act to codify the Commission's E9-1-1 rules for interconnected VoIP providers. Interconnected VoIP service providers generally must transmit all 9-1-1 calls, including Automatic Number Identification (ANI) and the caller's Registered Location for each call, to the PSAP, designated statewide default answering point, or appropriate local emergency authority. Currently, however, the Commission's outage reporting rules covering legacy circuit-switched voice and/or paging communications over wireline, wireless, cable and satellite communications services do not also cover interconnected VoIP service providers or the broadband Internet Service Providers (ISPs) on whose networks interconnected VoIP services are carried. As a result, the Commission currently cannot monitor the reliability and availability of 9-1-1 and E9-1-1 communications that depend on these systems.
59. With the objective of ensuring reliability of related networks and services, the
60. The proposed reporting to the Commission would use the Commission-approved Web-based outage reporting templates. The proposed reporting process for outages experienced by interconnected VoIP service providers and broadband ISPs would follow the existing reporting process for legacy communications providers, such as wireline communications providers.
61. The Commission traditionally has addressed reliability issues by helping to develop and promote best practices that address vulnerabilities in the communications network, and by measuring the effectiveness of best practices through outage reporting. Under the Commission's current rules, the outage reporting process has been effective in improving the reliability, resiliency and security of the legacy services. Collaborating with providers and industry bodies, the Commission staff has been able to achieve dramatic reductions in outages affecting legacy services. The aim of extending outage reporting process to cover interconnected VoIP service providers and broadband ISPs is to achieve a similar result: Improve the reliability, resiliency and security of their services.
62.
63. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
64.
65.
66. The most current Economic Census data for all such firms are 2007 data. For the first category, the data show that 396 firms operated for the entire year, of which only 2 operated with more than 1,000 employees. For the second category, the data show that 2,383 firms operated for the entire year. Of those, only 37 had annual receipts of more than $25,499,999 per year. We estimate that the majority of ISP firms are small entities. To ensure that this IRFA describes the universe of small entities that our action might affect, we discuss below several different types of entities that might be currently providing interconnected VoIP service, Internet access service, or broadband backbone Internet service.
67.
68. The Commission has included small incumbent LECs in this present RFA analysis. A “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent LECs in this RFA analysis.
69.
70. Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and 2 have more than 1,500 employees. Consequently, the Commission estimates that the majority of operator service providers are small entities that may be affected by our proposed action.
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77. On January 26, 2001, the Commission completed the auction of 422 C- and F-Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
78.
79. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small businesses.
80. There are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.
81.
82. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
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91. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we estimate that at least 1,932 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services we must, however, use the most current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.
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99. The rules proposed in this
100. We expect that the outage reporting and analysis that would follow could lead to the development and refinement of best practices. There may be additional thresholds that should also be included to improve the process of developing and improving best practices. We encourage interested parties to address these issues in the context of the applicable technologies and to develop their comments in the context of the ways in which the proposed information collection would facilitate best practices development and increased communications security, reliability and resiliency throughout the United States and its Territories.
101. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
102. Over the past decade, the proportion of communications services provided over a broadband platform has increased substantially, and our Nation increasingly relies on broadband-based services not only for day-to-day consumer use but also for Homeland Defense and National Security. Over the past three years, the number of outages reported each year has remained relatively steady at about 11,000. We believe that the proposed outage reporting requirements are the minimum necessary to assure that we receive adequate information to perform our statutory responsibilities with respect to 9-1-1 services and ensure the reliability of communications and critical infrastructures. Also, we believe that the magnitude of the outages needed to trigger the proposed reporting requirements are sufficiently high as to make it unlikely that small businesses would be impacted significantly by the proposed rules. We also believe the choice of performance-based, as opposed to design-based, degradation characteristics and the corresponding thresholds chosen to trigger the outage reporting will not unduly burden smaller entities. We have also carefully considered the notion of a waiver for small entities from coverage of the proposed rules, but declined to propose one, as a waiver of this type would unduly frustrate the purpose of the proposed requirements and run counter to the objectives of the
103. The proposed rules in the
104. We ask parties to include comments on possible alternatives that could satisfy the aims of the proceeding in a less costly, less burdensome, and/or more effective manner, and to comment on the sources of legal authority for the proposal assuming the Commission were to decide to adopt the proposal. We also seek comments on an analysis of the costs, burdens, and benefits of the various proposed rules set forth in this proceeding. We ask commenters to address particularly the following concerns: What are the costs, burdens, and benefits associated with any proposed rule? Entities, especially small businesses and small entities, more generally, are encouraged to quantify the costs and benefits of the proposed reporting requirements. How could any proposed rule be tailored to impose the least cost and the least amount of burden on those affected? What potential regulatory approaches would maximize the potential benefits to society? To the extent feasible, what explicit performance objectives should the Commission specify? How can the Commission best identify alternatives to regulation, including fees, permits, or other non-regulatory approaches?
105. Comments are sought on all aspects of this proposal, including the proposed extension of such requirements, the definitions and proposed reporting thresholds, and the proposed reporting process that would follow essentially the same approach that currently applies to outage reporting on legacy services. Parties should include in their comments whether the proposed rules would satisfy the Commission's intended aims, described herein, and would promote the reliability, resiliency and security of interconnected VoIP, broadband Internet access, and broadband backbone Internet services that support 9-1-1 communications. Commenters are asked to address our tentative conclusions that: Expanding Part 4 outage reporting requirements to interconnected VoIP service providers and broadband ISPs would allow the Commission to analyze outages of the services that they provide; would provide an important tool for network operators to prevent future outages; and would help to ensure the reliability of critical communications networks and services.
106. We welcome comments on: the proposal itself; whether it would achieve the intended objectives; whether there are performance objectives not mentioned that we should address; whether better alternatives exist that would accomplish the proceeding's objectives; the legal authority to take the contemplated actions described herein; and the costs, burdens and benefits of our proposal.
107. None.
108. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the public meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 9 a.m. to 1 p.m. on June 24, 2011 at the National Press Club located at 529 14th St., NW., Washington, DC. “The Role of Higher Education in the Feed the Future Initiative” will be the central theme of the meeting.
Dr. Brady Deaton, the new Chair of BIFAD, will preside over the proceedings. Dr. Deaton is the Chancellor of the University of Missouri at Columbia.
The announcement of the 2011 World Food Prize Laureate at the State Department on June 21 and the “Feed the Future” Research Forum from June 21 to 23 provide the backdrop for the BIFAD public meeting on June 24. The meeting will include the participation of five new BIFAD presidential appointments. Including Dr. Deaton, those new members are Jo Luck, President of Heifer International, Marty McVey of McVey & Company Investments Inc., Gebisa Ejeta, Distinguished Professor, Department of Agronomy, Purdue University and Catherine Bertini, Chair, International Relations Program and Professor, Maxwell School of Citizenship and Public Affairs, Syracuse University. Board members with continuing service include Elsa Murano, Professor and President Emerita of TexasA&M University and William DeLauder, President Emeritus of Delaware State University. After opening remarks by Dr. Deaton, USAID Administrator Rajiv Shah will formally swear in the new Board members and make a short presentation. At the conclusion of Dr. Shah's remarks, Dr. Deaton will acknowledge immediate past Chair Robert Easter and the other outgoing Board members for their service.
The BIFAD Spring public meeting will focus heavily on the USAID Feed the Future (FtF) Initiative. The first session will offer USAID and USDA perspectives on progress to date, taking into account specifically Title XII university perspectives. The panel of speakers will include Paul Weisenfeld, Assistant to the Administrator of the Bureau for Food Security; Julie Howard, Deputy Coordinator of the Feed the Future Initiative, and a USDA representative. Deanna Behring, Director of International Agriculture Programs at Penn State University will serve as respondent and provide university perspectives.
The second FtF session will review outcomes of the Association of Public and Land-grant Universities (APLU)-led consultative process in response to the FTF research strategy. Dr. Montague Demment, Professor of Ecology at University of California-Davis and Associate Vice President for International Development of APLU, will provide an overview of the consultative process for the Board. USAID staff will provide an overview of the research priority outcomes. Because the Collaborative Research Support Programs (CRSPs) are among the major Title XII university-based research programs, a member of the CRSP Council will serve as a respondent to address additional issues.
The Board meeting is open to the public, and time will be allotted for a public comment period. The Board benefits greatly in hearing from the stakeholder community and others. To ensure that as many people as possible have the opportunity to contribute to the morning's discussions, comments will be restricted to 3 minutes for each commenter. At the conclusion of the public comment period, the Board will adjourn the meeting to proceed to a luncheon and executive meeting (closed to the public).
Those wishing to attend the meeting or obtain additional information about BIFAD should contact Susan Owens, Executive Director and Designated Federal Officer for BIFAD. Interested persons may write her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue, NW., Room 7.8-061, Washington, DC 20523-2110 or telephone her at (202) 712-0218 or fax (202) 216-3124.
Foreign Agricultural Service, USDA.
Notice.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary of Agriculture (Secretary), in coordination with the United States Trade Representative (USTR), has renewed the Agricultural Policy Advisory Committee for Trade (APAC).
Inquiries or comments regarding the renewal of this committee may be sent by electronic mail to:
The APAC is authorized by sections 135(c)(1) and (2) of the Trade Act of 1974, as amended (Pub. L. 93-618, 19 U.S.C. 2155). The purpose of this committee is to advise the Secretary and the USTR concerning agricultural trade policy. The committee is intended to ensure that representative elements of the private sector have an opportunity to express their views to the U.S. Government.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. Appendix), FAS gives notice that the Secretary and the USTR have renewed the APAC.
In 1974, Congress established a private sector advisory committee system to ensure that U.S. trade policy and negotiation objectives adequately reflect U.S. commercial and economic interests. The private sector advisory committee system currently consists of the following three tiers:
• The President's Advisory Committee on Trade and Policy Negotiations;
• Five general policy advisory committees, including the APAC; and
• Twenty-two technical advisory committees, including the Agricultural Technical Advisory Committees for Trade (ATACs).
The renewal of the APAC is in the public interest in connection with USDA's performance of duties imposed on USDA by the Trade Act of 1974, as amended.
Foreign Agricultural Service, USDA.
Notice.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Secretary of Agriculture (Secretary), in coordination with the United States Trade Representative (USTR), has renewed the six Agricultural Technical Advisory Committees for Trade (ATACs).
Inquiries or comments regarding the renewal of these committees may be sent by electronic mail to:
The ATACs are authorized by sections 135(c)(1) and (2) of the Trade Act of 1974, as amended (Pub. L. 93-618, 19 U.S.C. 2155). The purpose of these committees is to advise the Secretary and the USTR concerning agricultural trade policy. The committees are intended to ensure that representative elements of the private sector have an opportunity to express their views to the U.S. Government.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. Appendix), FAS gives notice that the Secretary and the USTR have renewed the following four ATACs:
• Animals and Animal Products;
• Fruits and Vegetables;
• Processed Foods, and;
• Sweeteners and Sweetener Products.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. App. II), FAS gives notice that the Secretary and the USTR are reorganizing and then renewing the following two ATACs:
• Grains, Feed, Oilseeds and Planting Seeds.
• Tobacco, Cotton and Peanuts.
These ATACs are being reorganized by removing representation of the planting seeds industry from the Tobacco, Cotton, Peanuts and Planting Seeds (TCPPS) ATAC and adding representation of the planting seeds sector to the Grains, Feed and Oilseeds (GFO) ATAC. The justification for this structural change is that many of the issues that the GFO committee addresses, such as genetically modified organisms, new technologies and international negotiations, are common within the U.S. planting seeds industry. The proposed changes will result in the Tobacco, Cotton and Peanuts (TCP) ATAC and the Grains, Feed, Oilseeds, and Planting Seeds (GFOPS) ATAC.
In 1974, Congress established a private sector advisory committee system to ensure that U.S. trade policy and negotiation objectives adequately reflect U.S. commercial and economic interests. The private sector advisory committee system currently consists of the following three tiers:
• The President's Advisory Committee on Trade and Policy Negotiations;
• Five general policy advisory committees, including the Agricultural Policy Advisory Committee for Trade, and;
• Twenty-two technical advisory committees, including the ATACs.
The reorganizing and renewal of such committees is in the public interest in connection with USDA's performance of duties imposed on USDA by the Trade Act of 1974, as amended.
Forest Service, USDA.
Request for comment; notice.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the revision of a currently approved information collection, Perceptions of Risk, Trust, Responsibility, and Management Preferences among Fire-Prone Communities in the Western United States.
Comments must be received in writing on or before August 8, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Patricia L. Winter, Pacific Southwest Research Station, Forest Service, USDA, 4955 Canyon Crest Drive, Riverside, CA 92507.
Comments also may be submitted via facsimile to 951 680-1501 or by e-mail to:
The public may inspect comments received at Building One Reception, 4955 Canyon Crest Drive, Riverside, CA 92507, during normal business hours. Visitors are encouraged to call ahead to (951) 680-1500 to facilitate entry to the building.
Patricia L. Winter, Pacific Southwest Research Station, USDA FS, 951-680-1557. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
The results will help researchers improve ability to provide information to natural resource managers on public perceptions of fire and fire management. To gather the information, residents within or adjacent to national forests in the Western United States will be contacted through mailed or e-mail correspondence, or by telephone, inviting their participation in a focus group study. Willing or interested parties will contact the researcher and be scheduled into sessions in their community. Those agreeing to participate will be involved in a focus group discussion and complete a self-administered survey.
A Forest Service researcher and analyst/technician will collect and analyze the information with the assistance of a cooperating university researcher. The primary researcher is an expert in applied social psychology and survey research. The cooperator will be experienced in conducting community based focus groups.
Participants will first complete a questionnaire focused on concern about fire, knowledge about fire, values similarity with the Forest Service, trust, objectives for fire management, personal experience with fire, stressors of fire and fire risk, responsibility for risk reduction, accomplishment of risk reduction, sources of concern about fire, future orientation, and sociodemographics. Participants will then participate in a discussion on the following topics: objectives, values, and concerns in fire management; alternatives for accomplishing objectives; values/goals and trust; and information needs and interests.
Invitations are sent by mail, e-mail, or via telephone to individuals aged 18 or older residing in the selected communities. When possible, multiple sessions will be held in each community to accommodate as many participants as are interested. Responses will be voluntary and anonymous.
Responses will be used to evaluate the values linked to fire and fire management among forest community residents; personal experiences with fire and how participants have addressed fire risk; perceived responsibility and accomplishments in addressing fire risk; and personal characteristics that might influence these responses. The data collected will assist researchers in determining public perception and expectations regarding fire management and risk, as well as providing information on how residents address these issues. Such data is valuable to forest resource managers, who use the information when selecting long and short-term fire management strategies, and in developing public information strategies on fire and fire management.
Without this information, managers will have to rely on the scant information otherwise available on current and changing public views regarding fire and fire management, and the anecdotal information collected through direct experiences with the public regarding impacts of fire and fire risk. The intent is to share the collected data with other researchers studying fire management, and other natural resource management values and objectives.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the 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 respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Forest Service, USDA.
Notice of meeting.
The Wrangell-Petersburg Resource Advisory Committee will meet by video-teleconference in Petersburg, Alaska and Wrangell, Alaska. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review project proposals and make project funding recommendations.
The meeting will be held on Saturday, June 25, 2011 from 8 a.m. to Noon.
Committee members will meet at the Wrangell Ranger District office at 525 Bennett Street in Wrangell, Alaska and at the Petersburg Ranger District office at 12 North Nordic Drive in Petersburg, Alaska. Written comments may be submitted as described under
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 Petersburg Ranger District office at 12 North Nordic Drive or the Wrangell Ranger District office at 525 Bennett Street during regular office hours (Monday through Friday 8 a.m.-4:30 p.m.).
Christopher Savage, Petersburg District
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed for further information.
The following business will be conducted: Evaluation of project proposals and recommendation of projects for funding. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. A one-hour public input session will be provided beginning at 9 a.m. Individuals wishing to make an oral statement should request in writing by June 20 to be scheduled on the agenda.
Written comments and requests for time for oral comments should be sent to Christopher Savage, Petersburg District Ranger, P.O. Box 1328, Petersburg, Alaska 99833, or Robert Dalrymple, Wrangell District Ranger, P.O. Box 51, Wrangell, AK 99929. Comments may also be sent via e-mail to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
In line with the President's National Export Initiative, ITA is interested in gathering information from U.S. companies that use the U.S.-EU and U.S.-Swiss Safe Harbor Frameworks to better evaluate the programs and how they support U.S. exports. The information will be obtained via a survey using the questions in 76 FR 8337.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, number (202) 395-5167, or via the Internet at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the New York State Department of Environmental Conservation, 21 South Putt Corners Rd., New Paltz, NY 12561 [Responsible Party: Kathryn Hattala] has applied in due form to take shortnose sturgeon (
Written, telefaxed, or e-mail comments must be received on or before July 11, 2011.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are 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
• Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281-9328; fax (978) 281-9394.
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.
Malcolm Mohead or Colette Cairns, (301) 713-2289.
The subject permit is requested under the
The applicant proposes a five-year scientific research permit characterizing the habitat use, population abundance, reproduction, juvenile recruitment, age and growth, temporal and spatial distribution, diet selectivity, and contaminant load of shortnose sturgeon captured from the Hudson River Estuary from New York Harbor to Troy Dam. Anchored and drift gill nets and trawl nets would be used to capture up to 240 and 2,340 shortnose sturgeon in year one through three and year four and five, respectively. Other research activities would include: measuring, weighing; tagging unmarked individuals with passive integrated transponder tags, and dart tags; and genetic tissue sampling. A first subset of fish would be anesthetized and tagged with acoustic transmitters; a second subset would have fin rays sampled for ageing; and a third subset of fish would be gastrically lavaged for diet analysis, as well as have blood samples taken for contaminant testing. A total of nine unintended mortalities are requested over the life of the permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of letters of authorization.
In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notification is hereby given that NMFS has issued one-year Letters of Authorization (LOA) to take marine mammals incidental to the explosive removal of offshore oil and gas structures (EROS) in the Gulf of Mexico.
These authorizations are effective from July 1, 2011 through June 30, 2012, and September 3, 2011 through September 2, 2012.
The application and LOAs are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3235 or by telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-713-2289.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization for incidental taking, in the form of annual LOAs, may be granted by NMFS for periods up to five years if NMFS finds, after notice and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat (
Regulations governing the taking of marine mammals incidental to EROS were published on June 19, 2008 (73 FR 34875), and remain in effect through July 19, 2013. For detailed information on this action, please refer to that
NMFS regulations require timely receipt of reports for activities conducted under the previously issued LOA and a determination that the required mitigation, monitoring and reporting were undertaken. NMFS Galveston Laboratory's Platform Removal Observer Program (PROP) has provided reports for El Paso and EOG Resources removal of offshore structures in 2010. NMFS PROP observers reported the following during El Paso and EOG Resources' EROS operations in 2010 to 2011:
Pursuant to these regulations, NMFS has issued an LOA to El Paso and EOG Resources. Issuance of the LOAs is based on a finding made in the preamble to the final rule that the total taking by these activities (with monitoring, mitigation, and reporting measures) will result in no more than a negligible impact on the affected species or stock(s) of marine mammals and will not have an unmitigable adverse impact on subsistence uses. NMFS will review reports to ensure that the applicants are in compliance with meeting the requirements contained in the implementing regulations and LOA, including monitoring, mitigation, and reporting requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Pacific Council) Tule Chinook Workgroup (TCW) will hold a meeting to review work products and develop an abundance-based harvest management approach for Columbia River natural tule Chinook. This meeting of the TCW is open to the public.
The meeting will be held Thursday, July 14, 2011, from 9 a.m. to 4 p.m.
The meeting will be held at the Pacific Fishery Management Council, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220-1384; telephone: (503) 820-2280.
Mr. Chuck Tracy, Salmon Management Staff Officer, Pacific Fishery Management Council; telephone: (503) 820-2280.
This meeting of the TCW will involve review of initial work products and refining future work plans. Eventually, TCW work products will be reviewed by the Pacific Council, and if approved, would be submitted to NMFS for possible consideration in the next Lower Columbia River tule biological opinion for ocean salmon seasons in 2012 and beyond, and distributed to State and Federal recovery planning processes. In the event that a usable approach emerges from this process, the Pacific Council may consider a fishery management plan (FMP) amendment process beginning after November 2011 to adopt the approach as a formal conservation objective in the Salmon FMP.
Although non-emergency issues not contained in the meeting agenda may come before the TCW for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental take authorization (ITA).
In accordance with the Marine Mammal Protection Act (MMPA) regulation, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the U.S. Geological Survey (USGS) to take marine mammals, by Level B harassment, incidental to conducting a marine geophysical survey in the central Gulf of Alaska (GOA), June 2011.
Effective June 5 through July 25, 2011.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephoning the contacts listed here.
A copy of the application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-713-2289, ext. 172.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce (Secretary) to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.
Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS's review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
16 U.S.C. 1362(18)
NMFS received an application on January 21, 2011, from USGS for the taking by harassment, of marine mammals, incidental to conducting a marine geophysical survey in the central GOA within the U.S. Exclusive Economic Zone (EEZ) and adjacent international waters in depths from approximately 2,000 meters (m) (6,561.7 feet [ft]) to greater than 6,000 m (19,685 ft). USGS plans to conduct the survey from approximately June 5 to 25, 2011. On April 1, 2011, NMFS published a notice in the
USGS plans to use one source vessel, the R/V
Acoustic stimuli (
USGS's planned seismic survey in the central GOA is between approximately 200 to 650 kilometers (km) (108 to 351 nautical miles [nmi]) offshore in the area 53 to 57° North, 135 to 148° West (see Figure 1 of the IHA application). Water depths in the survey area range from approximately 2,000 m (6,561.7 ft) to greater than 6,000 m (19,685 ft). The project is scheduled to occur from approximately June 5 to 25, 2011. Some minor deviation from these dates is possible, depending on logistics and weather.
The seismic survey will collect seismic reflection and refraction profiles to be used to delineate the U.S. ECS in the GOA. The ECS is the region beyond 200 nmi where a nation can show that it satisfies the conditions of Article 76 of the United Nations Convention on the Law of the Sea. One of the conditions in Article 76 is a function of sediment thickness. The seismic profiles are designed to identify the stratigraphic “basement” and to map the thickness of the overlying sediments. Acoustic velocities (required to convert measured travel times to true depth) will be measured directly using sonobuoys and ocean-bottom seismometers (OBSs), as well as by analysis of hydrophone streamer data. Acoustic velocity refers to the velocity of sound through sediments or crust.
The survey will involve one source vessel, the
The planned seismic survey (
All planned geophysical data acquisition activities will be conducted by Lamont-Doherty Earth Observatory (L-DEO), the
The survey will occur in the central GOA, between approximately 200 and 650 km offshore, in the area 53 to 57° North, 135 to 148° West. The seismic survey will take place in water depths of 2,000 to greater than 6,000 m. The exact dates of the activities depend on logistics and weather conditions. The
NMFS outlined the purpose of the program in a previous notice for the proposed IHA (76 FR 18167, April 1, 2011). The activities to be conducted have not changed between the proposed IHA notice and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including vessel and acoustic source specifications, the reader should refer to the proposed IHA notice (76 FR 18167, April 1, 2011), the IHA application and associated documents referenced above this section.
A notice of receipt of the USGS application and proposed IHA was published in the
Should the action agency endeavor to undertake a sound source verification study, confidence in the results is necessary in order to ensure for conservation purposes that appropriate monitoring and mitigation measures are implemented; therefore inappropriate or poorly executed efforts should be avoided and discouraged.
Based on these reasons, and the information provided by USGS in their IHA application and EA, NMFS is satisfied that the data supplied are sufficient for NMFS to conduct its analysis and make any determinations and therefore no further effort is needed by the applicant. While exposures of marine mammals to acoustic stimuli are difficult to estimate, NMFS is confident that the levels of take authorized herein are estimated based upon the best available scientific information and estimation methodology. The 160 dB zone used to estimate exposure is appropriate and sufficient for purposes of supporting NMFS's analysis and determinations required under section 101(a)(5)(D) of the MMPA and its implementing regulations. See NMFS's response to Comment 2 (below) for additional details.
At present, the L-DEO model does not account for site-specific environmental conditions. The calibration study of the L-DEO model predicted that using site-specific information may actually provide less conservative EZ radii at greater distances. The Draft Programmatic Environmental Impact Statement for Marine Seismic Research Funded by the National Science Foundation or Conducted by the U.S. Geological Survey (DPEIS) prepared pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
The IHA issued to USGS, under section 101(a)(5)(D) of the MMPA provides monitoring and mitigation requirements that will protect marine mammals from injury, serious injury, or mortality. USGS is required to comply with the IHA's requirements. These analyses are supported by extensive scientific research and data. NMFS is
Based on NMFS's analysis of the likely effects of the specified activity on marine mammals and their habitat, NMFS has determined that the EZs identified in the IHA are appropriate for the survey and that additional field measurement is not necessary at this time. While exposures of marine mammals to acoustic stimuli are difficult to estimate, NMFS is confident that the levels of take authorized herein are estimated based upon the best available scientific information and estimation methodology. The 160 dB zone used to estimate exposure are appropriate and sufficient for purposes of supporting NMFS's analysis and determinations required under section 101(a)(5)(D) of the MMPA and its implementing regulations.
Should the airguns be inactive or powered-down for more than 8 min, and the PSVO does not observe the marine mammal leaving the EZ, then USGS must wait 15 min (for small odontocetes and pinnipeds) or 30 min (for mysticetes and large odontocetes) after the last sighting before USGS can initiate ramp-up procedures. However, ramp-up will not occur as long as a marine mammal is detected within the EZ, which provides more time for animals to leave the EZ, and accounts for the position, swim speed, and heading for marine mammals within the EZ.
Finally, USGS may need to temporarily perform a shut-down due to equipment failure or maintenance. In this instance, USGS will restart the airgun array to the full source level within an 8 min period of the shut down only if the PSVOs do not observe marine mammals within the EZ for the full source level. If the airguns are inactive or powered-down for more than 8 min, then USGS would follow the ramp-up procedures required by the IHA. USGS would restart the airguns beginning with the smallest airgun in the array and add airguns in a sequence such that the source level of the array does not exceed approximately 6 decibels (dB) per 5 min period over a total duration of approximately 30 min. Again, the PSVOs would monitor the EZs for marine mammals during this time and would initiate a power-down or a shut-down, as required by the IHA.
(1) Because the
(2) In many cases PSVOs are observing during times when USGS is not operating the seismic airguns and would observe the area prior to the 30 min observation period;
(3) The majority of the species that may be exposed do not stay underwater more than 30 min; and
(4) All else being equal and if deep-diving individuals happened to be in the area in the short time immediately prior to the pre-ramp-up monitoring, if an animal's maximum underwater dive time is 45 min, then there is only a one in three chance that the last random surfacing would occur prior to the beginning of the required 30 min monitoring period and that the animal would not be seen during that 30 min period.
Finally, seismic vessels are moving continuously (because of the long, towed array and streamer) and NMFS believes that unless the animal submerges and follows at the speed of the vessel (highly unlikely, especially when considering that a significant part of their movements is vertical [deep-diving]), the vessel will be far beyond the length of the EZ radii within 30 min, and therefore it will be safe to start the airguns again.
The effectiveness of monitoring is science-based and the requirement is that monitoring and mitigation measures be “practicable.” NMFS believes that the framework for visual monitoring will: (1) Be effective at spotting almost all species for which take is requested; and (2) that imposing additional requirements, such as those suggested by the Commission, would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the EZs and thus further minimize the potential for take.
(1) Identify those species that it believes can be detected with a high degree of confidence using visual monitoring only;
(2) Describe detection probability as a function of distance from the vessel;
(3) Describe changes in detection probability under various sea state and weather conditions and light levels; and
(4) Explain how close to the vessel marine mammals must be for Protected Species Observers (PSOs) to achieve high nighttime detection rates.
NMFS acknowledges that the detection probability for certain species of marine mammals varies depending on animal size and behavior as well as sea state and weather conditions and light levels. The detectability of marine mammals likely decreases in low light (
USGS (the Federal funding agency for this survey), NSF, and L-DEO are receptive to incorporating proven technologies and techniques to enhance the current monitoring and mitigation program. Until proven technological advances are made, nighttime mitigation measures during operations include combinations of the use of Protected Species Visual Observers (PSVOs) for ramp-ups, PAM, night vision devices (NVDs), and continuous shooting of a mitigation airgun. Should the airgun array be powered-down, the operation of a single airgun would continue to serve as a sound source deterrent to marine mammals. In the event of a complete shut-down of the airgun array at night for mitigation or repairs, USGS suspends the data collection until one-half hour after nautical twilight-dawn (when PSVOs are able to clear the EZ). USGS will not activate the airguns until the entire EZ is visible for at least 30 min.
In cooperation with NMFS, L-DEO will be conducting efficacy experiments of NVDs during a future
There will be significant amounts of transit time during the cruise, and PSVOs will be on watch prior to and after the seismic portions of the survey, in addition to during the survey. The collection of this visual observational data by PSVOs may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers, but it is unlikely that the information gathered from this single cruise alone would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed.
NMFS acknowledges the Commission's recommendations and is open to further coordination with the Commission, USGS (the Federal research funding agency for this cruise), NSF (the vessel owner), and L-DEO (the ship operator on behalf of NSF), to develop, validate, and implement a monitoring program that will provide or contribute towards a more scientifically sound and reasonably accurate assessment of the types of marine mammal taking and the number of marine mammals taken. However, the cruise's primary focus is marine geophysical research and the survey may be operationally limited due to considerations such as location, time, fuel, services, and other resources.
(1) To report on the number of marine mammals that were detected acoustically and for which a power-down or shut-down of the airguns was initiated;
(2) Specify if such animals also were detected visually; and
(3) Compare the results from the two monitoring methods (visual versus acoustic) to help identify their respective strengths and weaknesses.
(i) Notify the on-duty PSVO(s) immediately of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required;
(ii) Enter the information regarding the vocalization into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position, and water depth when first detected, bearing if determinable, species or species group (
USGS reports on the number of acoustic detections made by the PAM system within the post-cruise monitoring reports as required by the IHA. The report also includes a description of any acoustic detections that were concurrent with visual sightings, which allows for a comparison of acoustic and visual detection methods for each cruise.
The post-cruise monitoring reports also include the following information: the total operational effort in daylight (hrs), the total operation effort at night (hrs), the total number of hours of visual observations conducted, the total number of sightings, and the total number of hours of acoustic detections conducted.
LGL Ltd., Environmental Research Associates (LGL), a contractor for USGS, has processed sighting and density data, and their publications can be viewed online at:
(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction of the airguns or vessel (
(ii) Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or power-down), Beaufort wind force and sea state, visibility, and sun glare.
Twenty-five marine mammal species (18 cetacean, 6 pinniped, and the sea otter) are known to or could occur in the GOA. Several of these species are listed as endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
The marine mammals that occur in the survey area belong to four taxonomic groups: odontocetes (toothed cetaceans, such as dolphins), mysticetes (baleen whales), pinnipeds (seals, sea lions, and walrus), and fissipeds (sea otter). Cetaceans and pinnipeds are the subject of the IHA application to NMFS. Walrus sightings are rare in the GOA. Sea otters generally inhabit nearshore areas inside the 40 m (131.2 ft) depth contour (Riedman and Estes, 1990) and likely would not be encountered in the deep, offshore waters of the study area. The sea otter and Pacific walrus are two marine mammal species mentioned in this document that are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered further in this analysis; all others are managed by NMFS. Coastal cetacean species (gray whales, beluga whales, and harbor porpoises) and pinniped species (California sea lions and harbor seals) likely would not be encountered in the deep, offshore waters of the survey area.
Table 1 presents information on the abundance, distribution, population status, conservation status, and density of the marine mammals that may occur in the survey area during June, 2011.
Refer to Section III of USGS's application for detailed information regarding the abundance and distribution, population status, and life history and behavior of these species and their occurrence in the project area. The application also presents how USGS calculated the estimated densities for the marine mammals in the survey area. NMFS has reviewed these data and determined them to be the best available scientific information for the purposes of the IHA.
Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the survey area. The effects of sounds from airgun operations might include one or more of the following: tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson
Permanent hearing impairment, in the unlikely event that it occurred, would constitute injury, but temporary threshold shift (TTS) is not an injury (Southall
The notice of the proposed IHA (76 FR 18167, April 1, 2011) included a discussion of the effects of sounds from airguns on mysticetes, odontocetes, and pinnipeds including tolerance, masking, behavioral disturbance, hearing impairment, and other non-auditory physical effects. NMFS refers the reader to USGS's application, and EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels.
NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine fish and invertebrates in the notice of the proposed IHA (76 FR 18167, April 1, 2011). While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and reversible which NMFS considered in further detail in the notice of the proposed IHA (76 FR 18167, April 1, 2011) as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals.
Recent work by Andre
In order to issue an ITA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
USGS has based the mitigation measures described herein, to be implemented for the seismic survey, on the following:
(1) Protocols used during previous USGS and L-DEO seismic research cruises as approved by NMFS;
(2) Previous IHA applications and IHAs approved and authorized by NMFS; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, USGS and/or its designees will implement the following mitigation measures for marine mammals:
(1) EZs;
(2) Power-down procedures;
(3) Shut-down procedures;
(4) Ramp-up procedures; and
(5) Special procedures for situations and species of concern.
If the PSVO detects marine mammal(s) within or about to enter the appropriate EZ, the airguns will be powered-down (or shut-down, if necessary) immediately.
Table 2 summarizes the predicted distances at which sound levels (160, 180, and 190 dB [rms]) are expected to be received from the 36 airgun array and a single airgun operating in deep water depths.
If the PSVO detects a marine mammal outside the EZ, but it is likely to enter the EZ, USGS will power-down the airguns before the animal is within the EZ. Likewise, if a mammal is already within the EZ, when first detected USGS will power-down the airguns immediately. During a power-down of the airgun array, USGS will also operate the 40 in
Following a power-down, USGS will not resume airgun activity until the marine mammal has cleared the EZ. USGS will consider the animal to have cleared the EZ if:
• A PSVO has visually observed the animal leave the EZ, or
• A PSVO has not sighted the animal within the EZ for 15 min for species with shorter dive durations (
During airgun operations following a power-down (or shut-down) whose duration has exceeded the time limits specified previously, USGS will ramp-up the airgun array gradually (see Shut-down and Ramp-up Procedures).
(1) If an animal enters the EZ of the single airgun after USGS has initiated a power-down; or
(2) If an animal is initially seen within the EZ of the single airgun when more than one airgun (typically the full airgun array) is operating.
USGS will not resume airgun activity until the marine mammal has cleared the EZ, or until the PSVO is confident that the animal has left the vicinity of the vessel. Criteria for judging that the animal has cleared the EZ will be as described in the preceding section.
Ramp-up will begin with the smallest airgun in the array (40 in
If the complete EZ has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime, USGS will not commence the ramp-up unless at least one airgun (40 in
• The airguns will be shut-down immediately if ESA-listed species for which no takes are being requested (
• Concentrations of humpback, fin, and/or killer whales will be avoided if possible, and the array will be powered-down if necessary. For purposes of this survey, a concentration or group of whales will consist of three or more individuals visually sighted that do not appear to be traveling (
NMFS has carefully evaluated the applicant's mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation.
Based on NMFS's evaluation of the applicant's measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
USGS would sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the anticipated monitoring requirements of the IHA. USGS's Monitoring Plan is described below this section. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same regions. USGS is prepared to discuss coordination of its monitoring program with any related work that might be done by other groups insofar as this is practical and desirable.
USGS's PSVOs will be based aboard the seismic source vessel and will watch for marine mammals near the vessel during daytime airgun operations and during any ramp-ups at night. PSVOs will also watch for marine mammals near the seismic vessel for at least 30 min prior to the start of airgun operations after an extended shut-down.
PSVOs will conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on PSVO observations, the airguns will be powered-down or shut-down when marine mammals are observed within or about to enter a designated EZ.
During seismic operations in the central GOA, at least four PSOs will be based aboard the
Two PSVOs will also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third PSO (
The
When marine mammals are detected within or about to enter the designated EZ, the airguns will immediately be powered-down or shut-down if necessary. The PSVO(s) will continue to maintain watch to determine when the animal(s) are outside the EZ by visual confirmation. Airgun operations will not resume until the animal is confirmed to have left the EZ, or if not observed after 15 min for species with shorter dive durations (small odontocetes and pinnipeds) or 30 min for species with longer dive durations (mysticetes and large odontocetes, including sperm, killer, and beaked whales).
PAM will complement the visual monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range.
Besides the three PSVOs, an additional PSAO with primary responsibility for PAM will also be aboard the vessel. USGS can use acoustic monitoring in addition to visual observations to improve detection, identification, and localization of cetaceans. The acoustic monitoring will serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. It will be monitored in real time so that the PSVOs can be advised when cetaceans are detected. When bearings (primary and mirror-image) to calling cetacean(s) are determined, the bearings will be relayed to the visual observer to help him/her sight the calling animal(s).
The PAM system consists of hardware (
Ideally, the PSAO will monitor the towed hydrophones 24 hr per day at the seismic survey area during airgun operations, and during most periods when the
One PSAO will monitor the acoustic detection system at any one time, by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. PSAOs monitoring the acoustical data will be on shift for one to six hours at a time. Besides the PSVO, an additional PSAO with primary responsibility for PAM will also be aboard the source vessel. All PSVOs are expected to rotate through the PAM position, although the most experienced with acoustics will be on PAM duty more frequently.
When a vocalization is detected while visual observations are in progress, the PSAO will contact the PSVO immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), and to allow a power-down or shut-down to be initiated, if required. The information regarding the call will be entered into a database. Data entry will include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (
PSVOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially “taken” by harassment (as defined in the MMPA). They will also provide information needed to order a power-down or shut-down of the airguns when a marine mammal is within or near the EZ. Observations will also be made during daytime periods when the
When a sighting is made, the following information about the sighting will be recorded:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The data listed under (2) will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
All observations and power-downs or shut-downs will be recorded in a standardized format. Data will be entered into an electronic database. The accuracy of the data entry will be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures will allow initial summaries of data to be prepared during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power-down or shut-down).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS.
3. Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted.
4. Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
USGS will submit a report to NMFS and NSF within 90 days after the end of the cruise. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with USGS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. USGS may not resume their activities until notified by NMFS via letter or e-mail, or telephone.
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Only take by Level B harassment is anticipated and authorized as a result of the marine seismic survey in the central GOA. Acoustic stimuli (
The following sections describe USGS's methods to estimate take by incidental harassment and present the applicant's estimates of the numbers of marine mammals that could be affected during the seismic program. The
USGS assumes that, during simultaneous operations of the airgun array and the other sources, any marine mammals close enough to be affected by the MBES and SBP would already be affected by the airguns. However, whether or not the airguns are operating simultaneously with the other sources, marine mammals are expected to exhibit no more than short-term and inconsequential responses to the MBES and SBP given their characteristics (
There are several sources of systematic data on the numbers and distributions of marine mammals in the coastal and nearshore areas of the GOA, but there are fewer data for offshore areas. Vessel-based surveys in the northern and western GOA from the Kenai Peninsula to the central Aleutian Islands during July to August, 2001 to 2003 (Zerbini
Deeper water was included in several surveys. In a report on a seismic cruise in southeast Alaska from Dixon Entrance to Kodiak Island during August to September, 2004, MacLean and Koski (2005) included density estimates of cetaceans and pinnipeds for each of three depth ranges (less than 100 m, 100 to 1,000 m, and greater than 1,000 m) during non-seismic periods. Hauser and Holst (2009) reported density estimates during non-seismic periods for all marine mammals sighted during a September to early October seismic cruise in southeast Alaska for each of the same three depth ranges as MacLean and Koski (2005). Rone
Table 2 (Table 3 of the IHA application) gives the estimated average (best) and maximum densities of marine mammals expected to occur in the deep, offshore waters of the survey area. USGS used the densities reported by MacLean and Koski (2005) and Hauser and Holst (2009) for greater than 1,000 m, which were corrected for both trackline detection probability and availability biases. USGS calculated density estimates from effort and sightings in water depths greater than 1,000 m in Rone
There is some uncertainty about the representativeness of the data and the assumptions used in the calculations below for two main reasons: (1) the surveys from which densities were derived were at different times of year: April (Rone
Also, to provide some allowance for these uncertainties, “maximum estimates” as well as “best estimates” of the densities present and numbers potentially affected have been derived. Best estimates of cetacean density are effort-weighted mean densities from the various surveys, whereas maximum estimates of density come from the individual survey that provided the highest density. For marine mammals where only one density estimate was available, the maximum is 1.5 times the best estimate.
For one species, the Dall's porpoise, density estimates in the original reports are much higher than densities expected during the survey, because this porpoise is attracted to vessels. USGS estimates for Dall's porpoises are from vessel-based surveys without seismic activity; they are overestimates possibly by a factor of 5 times, given the tendency of this species to approach vessels (Turnock and Quinn, 1991). Noise from the airgun array during the survey is expected to at least reduce and possibly eliminate the tendency of this porpoise to approach the vessel. Dall's porpoises are tolerant of small airgun sources (MacLean and Koski, 2005) and tolerated higher sound levels than other species during a large-array survey (Bain and Williams, 2006); however, they did respond to that and another large airgun array by moving away (Calambokidis and Osmek, 1998; Bain and Williams, 2006). Because of the probable overestimates, the best and maximum estimates for Dall's porpoises shown in Table 2 (Table 3 of the IHA application) are one-quarter of the reported densities. In fact, actual densities are probably slightly lower than that.
USGS's estimates of exposures to various sound levels assume that the surveys will be fully completed including the contingency line; in fact, the ensonified areas calculated using the planned number of line-km have been increased by 25% to accommodate lines that may need to be repeated, equipment testing,
USGS estimated the number of different individuals that may be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) on one or more occasions by considering the total marine area that would be within the 160 dB radius around the operating airgun array on at least one occasion and the expected density of marine mammals. The number of possible exposures (including repeated exposures of the
(1) The expected species density, either “mean” (
(2) The anticipated area to be ensonified to that level during airgun operations excluding overlap.
The area expected to be ensonified was determined by entering the planned survey lines into a MapInfo GIS, using the GIS to identify the relevant areas by “drawing” the applicable 160 dB buffer (see Table 1 of the IHA application) around each seismic line, and then calculating the total area within the buffers. Areas of overlap (because of lines being closer together than the 160 dB radius) were limited and included only once when estimating the number of individuals exposed. Before calculating numbers of individuals exposed, the areas were increased by 25% as a precautionary measure.
Table 2 (Table 4 of the IHA application) shows the best and maximum estimates of the number of different individual marine mammals that potentially could be exposed to greater than or equal to 160 dB re 1 μPa (rms) during the seismic survey if no animals moved away from the survey vessel. The requested take authorization, given in Table 3 (the far right column of Table 4 of the IHA application), is based on the maximum estimates rather than the best estimates of the numbers of individuals exposed, because of uncertainties about the representativeness of the density data discussed previously. For cetacean species not listed under the ESA that could occur in the study area but were not sighted in the surveys from which density estimates were calculated—Pacific white-sided dolphins, Risso's dolphins, short-finned pilot whales, and Stejneger's beaked whales—the average group size has been used to request take authorization. For ESA-listed cetacean species unlikely to be encountered during the study (
Applying the approach described above, approximately 20,933 km
The “best estimate” of the number of individual cetaceans that could be exposed to seismic sounds with greater than or equal to 160 dB re 1 μPa (rms) during the survey is 973 (see Table 4 of the IHA application). That total includes 68 humpback, 76 fin, 10 sperm, 37 Cuvier's beaked, 11 Baird's beaked, and 99 killer whales, which would represent 0.3%, 0.5%, less than 0.1%, 0.2%, 0.2%, and 1.2% of the regional populations, respectively. Dall's porpoises are expected to be the most common species in the study area; the best estimate of the number of Dall's porpoises that could be exposed is 672 or less than 0.1% of the regional population. This may be a slight overestimate because the estimated densities are slight overestimates. Estimates for other species are lower. The “maximum estimates” total 2,539 cetaceans. “Best estimates” of 256 Steller sea lions and 2,771 northern fur seals could be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms). These estimates represent 0.6% of the Steller sea lion regional population and less than 0.1% of the northern fur seal regional population. The estimated numbers of pinnipeds that could be exposed to received levels greater than or equal to 160 dB re 1 μPa (rms) are probably overestimates of the actual numbers that will be affected. During the June survey period, the Steller sea lion is in its breeding season, with males staying on land and females with pups generally staying close to the rookeries in shallow water. Male northern fur seals are at their rookeries in June, and adult females are either there or migrating there, possibly through the survey area. No take has been requested for North Pacific right, minke, sei, and blue whales, beluga whales, harbor porpoises, Northern elephant and harbor seals, and California sea lions.
USGS will coordinate the planned marine mammal monitoring program associated with the seismic survey in the central GOA with other parties that may have an interest in the area and/or be conducting marine mammal studies in the same region during the seismic survey. USGS will coordinate with applicable U.S. agencies (
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, intensity, and duration of Level B harassment (all relatively limited); and
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment or survival; and
(6) The effectiveness of monitoring and mitigation measures (
For reasons stated previously in this document, and in the proposed notice of an IHA (76 FR 18167, April 1, 2011), the specified activities associated with the marine seismic survey are not likely to cause PTS, or other non-auditory injury, serious injury, or death because:
(1) The likelihood that, given sufficient notice through relatively slow ship speed, marine mammals are expected to move away from a noise source that is annoying prior to its becoming potentially injurious;
(2) The potential for temporary or permanent hearing impairment is very low and would likely be avoided through the incorporation of the monitoring and mitigation measures;
(3) The fact that pinnipeds and cetaceans would have to be closer than 400 m (1,312.3 ft) and 940 m (3,084 ft) in deep water when the 36 airgun array and 12 m (39.4 ft) and 40 m (131.2 ft) when the single airgun is in use at 9 m (29.5 ft) tow depth from the vessel to be exposed to levels of sound believed to have even a minimal chance of causing permanent threshold shift; and
(4) The likelihood that marine mammal detection ability by trained PSOs is high at close proximity to the vessel.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of the USGS's planned marine seismic survey, and none are authorized. Only short-term behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the survey activities. Due to the nature, degree, and context of behavioral harassment anticipated, the activity is not expected to impact rates of recruitment or survival for any affected species or stock.
As mentioned previously, NMFS estimates that nine species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, one percent or less) relative to the population size. NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting a marine seismic survey in the central GOA, June 2011, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals.
While behavioral modifications, including temporarily vacating the area during the operation of the airgun(s), may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas and the short and sporadic duration of the research activities, have led NMFS to determine that this action
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that USGS's planned research activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine seismic survey will have a negligible impact on the affected species or stocks of marine mammals; and that impacts to affected species or stocks of marine mammals have been mitigated to the lowest level practicable.
Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals in the study area (deep, offshore waters of the central GOA) that implicate MMPA section 101(a)(5)(D).
Of the species of marine mammals that may occur in the survey area, several are listed as endangered under the ESA, including the North Pacific right, humpback, sei, fin, blue, and sperm whales, as well as the Cook Inlet DPS of beluga whales and the western stock of Steller sea lions. The eastern stock of Steller sea lions is listed as threatened, as is the southwest Alaska DPS of the sea otter. Under section 7 of the ESA, USGS initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Division, on this seismic survey. NMFS's Office of Protected Resources, Permits, Conservation and Education Division, also initiated formal consultation under section 7 of the ESA with NMFS's Office of Protected Resources, Endangered Species Division, to obtain a Biological Opinion (BiOp) evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take. In June 2011, NMFS issued a BiOp and concluded that the action and issuance of the IHA are not likely to jeopardize the continued existence of the North Pacific right, humpback, sei, fin, blue, and sperm whales, Cook Inlet DPS of beluga whales, and Steller sea lions. The BiOp also concluded that designated critical habitat for these species does not occur in the action area and would not be affected by the survey. USGS must comply with the Relevant Terms and Conditions of the Incidental Take Statement (ITS) corresponding to NMFS's BiOp issued to both USGS and NMFS's Office of Protected Resources. USGS must also comply with the mitigation and monitoring requirements included in the IHA in order to be exempt under the ITS in the BiOp from the prohibition on take of listed endangered marine mammal species otherwise prohibited by section 9 of the ESA.
With its complete application, USGS provided NMFS an EA analyzing the direct, indirect, and cumulative environmental impacts of the specified activities on marine mammals including those listed as threatened or endangered under the ESA. The EA, prepared by LGL on behalf of USGS, is entitled “Environmental Assessment of a Marine Geophysical Survey by the R/V
NMFS has issued an IHA to USGS for the take, by Level B harassment, of small numbers of marine mammals incidental to conducting a marine geophysical survey in the central GOA, June 2011, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to United Launch Alliance (ULA), to take marine mammals, by Level B harassment, incidental to conducting
Effective June 7, 2011, through June 6, 2012.
A copy of the authorization, application, and associated Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910, telephoning the contact listed below (see
Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 713-2289.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who
Authorization for incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. NMFS must publish a notice in the
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS received an application on August 4, 2010, from ULA requesting the taking by harassment, of small numbers of marine mammals, incidental to conducting
These activities (
Acoustic and visual stimuli generated by the use of heavy equipment during the
The activities will take place in or near the VAFB harbor located on the central coast of California at 34° 33′ N, 120° 36′ W in the northeast Pacific Ocean. The harbor is approximately 2.5 miles (mi) (4.02 kilometers (km)) south of Point Arguello, CA, and approximately 1 mi (1.61 km) south of the nearest marine mammal rookery.
ULA proposes to conduct Delta IV/EELV activities (transport vessel operations, harbor maintenance dredging, and cargo movement activities) between June 8, 2011, and June 7, 2012.
To date, NMFS has issued eight, 1-year IHAs to ULA for the conduct of the same activities from 2002 to 2010, with the last IHA expiring on September 3, 2010 (74 FR 46742, September 11, 2009).
The Delta IV/EELV launch vehicle is comprised of a common booster core (CBC), an upper stage, and a payload fairing. The size of the CBC requires it to be transported to the VAFB launch site by a specially designed vessel, the
The
ULA must perform maintenance dredging annually or twice per year, depending on the hardware delivery schedule. To accommodate the
ULA provides a more detailed description of the work proposed for 2011-2012 in the application and the Final U.S. Air Force EA for Harbor Activities Associated with the Delta IV Program at Vandenberg Air Force Base (ENSR International, 2001) which are available upon request (see
Removal of the CBC from the vessel requires the use of an elevating platform transporter (EPT). The EPT is powered by a diesel engine manufactured by Daimler-Chrysler AG (Mercedes), model OM442A, 340HP. ULA would limit cargo unloading activities to periods of
NMFS outlined the purpose of the program in the Notice of Proposed IHA (76 FR 21862, April 19, 2011). The activities to be conducted have not changed between the Notice of Proposed IHA (76 FR 21862, April 19, 2011) and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including a discussion of associated noise sources from the harbor operations, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents referenced earlier in this document.
NMFS published a notice of receipt of the ULA application and proposed IHA in the
The marine mammal species most likely to be harassed incidental to conducting
Other cetaceans that have the potential to transit in the vicinity of the VAFB harbor include the short-beaked common dolphin (
Acoustic and visual stimuli generated by: The use of heavy equipment during the
The effects of the harbor activities would be limited to short-term startle responses and localized behavioral changes and have the potential to temporarily displace the animals from a haul out site. NMFS would expect the pinnipeds to return to a haulout site within 60 minutes of the disturbance (Allen
Finally, no operations would occur on pinniped rookeries; therefore, NMFS does not expect mother and pup separation or crushing of pups to occur. For a more detailed discussion of the sound levels produced by the equipment, behavioral reactions of marine mammals to loud noises or looming visual stimuli, and some specific observations of the response of marine mammals to this activity gathered during previous monitoring, NMFS refers the reader to the Notice of Proposed IHA (76 FR 21862, April 19, 2011), the application, and associated documents.
NMFS does not anticipate that the operations would result in any temporary or permanent effects on the habitats used by the marine mammals in the VAFB harbor, including the food sources they use (
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
ULA has based the mitigation measures described herein, to be implemented for the habor operations, on the following:
(1) Protocols used during previous operations as approved by NMFS; and
(2) Previous IHA applications and IHAs approved and authorized by NMFS.
To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities, ULA/and or its designees shall implement the following mitigating measures for marine mammals: (1) If activities occur during nighttime hours, ULA will turn on lighting equipment before dusk and the lights shall remain on for the entire night to avoid startling pinnipeds; (2) initiate operations before dusk; (3) keep construction noises at a constant level (i.e., not interrupted by periods of quiet in excess of 30 minutes) while pinnipeds are present; (4) if activities cease for longer than 30 minutes and pinnipeds are in the area, ULA shall initiate a gradual start-up of activities to ensure a gradual increase in noise levels; (5) a NMFS-qualified marine mammal observer shall visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of ULA's activities (see Monitoring); (6) the
NMFS has carefully evaluated the applicant's proposed mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize impacts as planned; and (3) the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
ULA will sponsor a marine mammal monitor during the present project, in order to implement the mitigation measures thus satisfying the monitoring requirements of the IHA. ULA's monitoring activities will consist of:
(1) A NMFS-qualified and VAFB-designated biologically trained observer monitoring the area for pinnipeds during all harbor activities. During nighttime activities, the monitor would use a night vision scope.
(2) Conducting baseline observations of pinnipeds in the project area prior to initiating project activities.
(3) Conducting and recording observations on pinnipeds in the vicinity of the harbor for the duration of the activity occurring when tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds to haul out.
(4) Conducting post-construction observations of pinniped haul-outs in the project area to determine whether animals disturbed by the project activities return to the haul-out.
ULA will notify NMFS two weeks prior to initiation of each activity. After the completion of each activity, ULA will submit a draft final monitoring report to NMFS within 120 days to the Director of Office of Protected Resources at NMFS Headquarters. If ULA receives no comments from NMFS on the draft Final Monitoring Report, NMFS would consider the draft Final Monitoring Report to be the Final Monitoring Report.
The final report shall provide dates, times, durations, and locations of specific activities, details of pinniped behavioral observations, and estimates of numbers of affected pinnipeds and impacts (behavioral or other). In addition, the report would include information on the weather, tidal state, horizontal visibility, and composition (species, gender, and age class) and locations of haul-out group(s).
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A Harassment), serious injury or mortality (
ULA shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ULA to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA
In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), ULA will immediately report the incident to the Chief of the Permits Conservation, and Education Division, Office of Protected Resources, NMFS, and to the NMFS Southwest Stranding Coordinators. The report must include the same information identified in Condition (a). ULA may continue its activities while NMFS reviews the circumstances of the incident. NMFS will work with ULA to determine whether modifications in the activities are appropriate.
In the event that ULA discovers an injured or dead marine mammal, and the NMFS-qualified marine mammal observer determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
NMFS anticipates take by Level B harassment only as a result of the harbor maintenance and
For this IHA, NMFS has authorized the take of 1,075 Pacific harbor seals, 86 California sea lions, and 43 northern elephant seals. Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area due to wave inundation of the haulout area, NMFS expects no injury, serious injury, or mortality to occur, and no takes by injury or mortality are authorized.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to:
(1) The number of anticipated mortalities;
(2) The number and nature of anticipated injuries;
(3) The number, nature, and intensity, and duration of Level B harassment; and
(4) The context in which the takes occur.
As mentioned previously, NMFS estimates that three species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, less than two percent) relative to the population size.
NMFS does not anticipate takes by Level A harassment, serious injury, or mortality to occur as a result of ULA's activities, and none are authorized. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed harbor maintenance and
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the impact of conducting harbor maintenance and vessel operations from June, 2011, through June, 2012, will result in the incidental take of small numbers of marine mammals, by Level B behavioral harassment only, and that the total taking from the ULA's activities will have a negligible impact on the affected species or stocks; and that impacts to affected species or stocks of marine mammals would be mitigated to the lowest level practicable.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
This action will not affect species listed under the ESA that are under NMFS' jurisdiction. VAFB formally consulted with the U.S. Fish and Wildlife Service in 1998 on the possible take of southern sea otters during ULA's harbor activities at south VAFB. A Biological Opinion was issued in August 2001, which concluded that the EELV Program is not likely to jeopardize the continued existence of the southern sea otter, and no injury or mortality is expected. The activities covered by this IHA are analyzed in that Biological Opinion, and this IHA does not modify the action in a manner that was not previously analyzed.
In 2001, the USAF prepared an Environmental Assessment (EA) for Harbor Activities Associated with the Delta IV Program at VAFB. In 2005, NMFS prepared an EA augmenting the information contained in the USAF EA and issued a Finding of No Significant Impact (FONSI) on the issuance of an IHA for ULA's harbor activities in accordance with section 6.01 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). ULA's activities and impacts for 2011-2012 are within the scope of NMFS' 2005 EA and FONSI. NMFS has again reviewed the 2005 EA and determined that there are no new direct,
As a result of these determinations, NMFS has issued an IHA to ULA to take marine mammals, by Level B harassment only, incidental to conducting
Wednesday, June 15, 2011; 10 a.m.-11 a.m.
Hearing Room 420, Bethesda Towers, 4330 East-West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, (301) 504-7923.
Council on Environmental Quality.
Notice of Availability, Strategic Action Plan Content Outlines; Request for Comments.
On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (“National Ocean Policy”). The National Ocean Policy provides an implementation strategy, which describes nine priority objectives that seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The National Ocean Council is responsible for developing strategic action plans for each of the nine priority objectives. As a first step, Federal interagency writing teams have developed content outlines for each draft strategic action plan. The NOC is seeking public review and comment of these content outlines.
The purpose of the draft content outlines (outlines) is to provide the public with an initial view of potential actions that could be taken to further the national priority objectives. As such, they are an interim step toward development of the first full draft of each strategic action plan. In developing the outlines, the writing teams were informed by the comments received during an initial public scoping period that closed on April 29.
Each outline presents in bulleted form potential actions to further the particular priority objective. It describes the reasons for taking the action, expected outcomes and milestones, gaps and needs in science and technology, and the timeframe for completing the action. The outlines also provide an overview of the priority objective, greater context for the strategic action plan in implementing the National Ocean Policy, and an overview of the preparation of the plan .
Public comments received on the outlines will be collated and posted on the NOC Web site. The comments on the outlines will inform the preparation of full draft strategic action plans, which will be released for public review in the fall of 2011, allowing additional opportunity for the public to provide comments. Final strategic action plans are expected to be completed by early 2012.
Comments should be submitted on or before July 2, 2011.
Content outlines can be downloaded here:
Michael Weiss, Deputy Associate Director for Ocean and Coastal Policy, at (202) 456-3892.
On July 19, 2010, President Obama signed Executive Order 13547 establishing a National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes (“National Ocean Policy”). That Executive Order adopts the Final Recommendations of the Interagency Ocean Policy Task Force and directs Federal agencies to take the appropriate steps to implement them. The Executive Order creates an interagency National Ocean Council (NOC) to strengthen ocean governance and coordination, identifies nine priority actions for the NOC to pursue, and adopts a flexible framework for effective coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, our coasts, and the Great Lakes.
The National Ocean Policy provides a comprehensive approach, based on science and technology, to uphold our stewardship responsibilities and ensure accountability for our actions to present and future generations. The Obama Administration intends, through the National Ocean Policy, to provide a model of balanced, productive, efficient, sustainable, and informed ocean, coastal, and Great Lakes use, management, and conservation. The Final Recommendations provide an implementation strategy that describes a clear set of priority objectives that our Nation should pursue to further the National Policy.
The nine priority objectives seek to address some of the most pressing challenges facing the ocean, our coasts, and the Great Lakes. The nine priority objectives are identified below. Additional information about each priority may be found at
These priority objectives are meant to provide a bridge between the National Ocean Policy and action on the ground and in the water, but they do not prescribe specific actions or responsibilities. The NOC is responsible for developing strategic action plans to achieve the priority objectives. As envisioned, the plans will:
• Identify specific and measurable near-term, mid-term, and long-term actions, with appropriate milestones, performance measures, and outcomes to fulfill each objective;
• Consider smaller-scale, incremental, and opportunistic efforts that could build upon existing activities, as well as more complex, larger-scale actions that have the potential to be truly transformative;
• Identify key lead and participating agencies;
• Identify gaps and needs in science and technology; and
• Identify potential resource requirements and efficiencies; and steps for integrating or coordinating current and out-year budgets.
The plans will be adaptive to allow for modification and addition of new actions based on new information or changing conditions. Their effective implementation will also require clear and easily understood requirements and regulations, where appropriate, that include enforcement as a critical component. Implementation of the National Ocean Policy for the stewardship of the ocean, our coasts, and the Great Lakes will recognize that different legal regimes, with their associated freedoms, rights, and duties, apply in different maritime zones. The plans will be implemented in a manner consistent with applicable international conventions and agreements and with customary international law as reflected in the Law of the Sea Convention. The plans and their implementation will be assessed and reviewed annually by the NOC and modified as needed based on the success or failure of the agreed upon actions.
The NOC is committed to transparency in developing strategic action plans and implementing the National Ocean Policy. As the NOC develops and revises the plans, it will ensure substantial opportunity for public participation. The NOC will also actively engage interested parties, including, as appropriate, State, Tribal, and local authorities, regional governance structures, academic institutions, nongovernmental organizations, recreational interests, and private enterprise.
Public comments are requested on or before July 1, 2011.
National Security Agency/Central Security Service, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by August 8, 2011.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to
Respondents are Gulf War veterans who served in the 1991 Gulf War. Information collected is dates of service in the Gulf, and answers to questions about health after obtaining informed consent approved by both the DoD institutional review board (IRB) and the East Carolina University IRB.
Department of the Army, DoD.
Notice to add a system of records.
The Department of the Army proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action would be effective without further notice on July 11, 2011 unless comments are received which 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:
•
•
Mr. Leroy Jones, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905, or by phone at (703) 428-6185.
The Department of the Army notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on June 2, 2011 to the House Committee on Oversight and Government Reform, the Senate Committee on 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 Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Integrated Personnel and Pay System—Army (IPPS-A) Records.
Primary Location: Radford Army Ammunitions Plant, Radford, VA 24143-0004.
Decentralized segments are located at Army Processing Centers (APCs) worldwide.
Members of the United States Army to include Active Duty, National Guard, Reserve, select Army retired and former Army military personnel.
10 U.S.C. 113, Secretary of Defense; 10 U.S.C. 3013, Secretary of the Army; 37 U.S.C., Pay and Allowances of the Uniformed Services; 10 U.S.C., Armed Forces: Under Secretary of Defense for Personnel and Readiness; and E.O. 9397 (SSN), as amended.
A Web-based, integrated personnel and pay system to support all components of the United States Army to include Active Duty, National Guard, Reserve, select Army retired and former Army military personnel. This system is intended to support peacetime and wartime readiness requirements across a range of personnel, financial and related matters.
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:
To officials and employees of the Department of Health and Human Services, and Selective Service Administration in the performance of their official duties related to eligibility, notification, and assistance in obtaining benefits for which members, former members or retiree may be eligible.
To officials and employees of the Department of Veterans Affairs in the performance of their official duties related to approved research projects, and for processing and adjudicating claims, determining eligibility, notification, and assistance in obtaining benefits and medical care for which members, former members, retiree and family members/annuitants may be eligible.
To the Department of Veterans Affairs to provide information regarding a service-member's record or family member for the purposes of supporting eligibility processing for the Service-member's Group Life Insurance program.
To state and local agencies in the performance of their official duties related to verification of status for determination of eligibility for Veterans bonuses and other benefits and entitlements.
To officials and employees of the American Red Cross in the performance of their duties relating to the assistance of the members and their dependents and relatives, or related to assistance previously furnished such individuals, without regard to whether the individual assisted or his/her sponsor continues to be a member of the Military Service. Access will be limited to those portions of the member's record required to effectively assist the member.
To the U.S. Citizenship and Immigration Services for use in making alien admission and naturalization inquiries.
To the Social Security Administration to obtain or verify Social Security Numbers or to substantiate applicant's credit for social security compensation.
To officials and employees of the Office of the Sergeant at Arms of the United States House of Representatives in the performance of their official duties related to the verification of the active duty military service of Members of Congress. Access is limited to those portions of the member's record required to verify time in service.
To the widow or widower, dependent, or next-of-kin of deceased members to settle the affairs of the deceased member. The individuals will have to verify relationship by providing a birth certificate, marriage license, death certificate, or court document as requested/required to prove identity.
To governmental agencies for the conduct of computer matching agreements for the purpose(s) of determining eligibility for Federal benefit programs, to determine compliance with benefit program requirements and to recover improper payments or delinquent debts under a Federal benefit program.
To Federal and state licensing authorities and civilian certification boards, committees and/or ecclesiastical endorsing organizations for the purposes of professional credentialing (licensing and certification) of lawyers, chaplains and health professionals.
To Federal agencies such as the National Academy of Sciences, for the purposes of conducting personnel and/or health-related research in the interest of the Federal government and the public. When not considered mandatory, the names and other identifying data will be eliminated from records used for such research studies.
To the officials and employees of the Department of Labor in the performance of their official duties related to employment and compensation.
Disclosure to consumer reporting agencies.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to `consumer reporting agencies' as defined in the Fair Credit Reporting Act (14 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government, typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number (SSN)); the amount, status and history of the claim, and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report.
The DoD `Blanket Routine Uses' set forth at the beginning of the Army's compilation of System of Records Notices apply to this system.
Electronic storage media.
Individual's name, Social Security Number (SSN), and date of birth.
Physical entry will be restricted by the use of locks, guards, and will be accessible only to authorized personnel with a need-to-know. Access to personal data will be limited to person(s) responsible for maintaining and servicing IPPS-A data in performance of their official duties and who are properly trained, screened and cleared for a need-to-know. Access to personal data will be further restricted by encryption and the use of Common Access Card (CAC) and/or strong password, which are changed periodically according to DoD and Army security policies.
Personnel and education records: Keep in current files area until transfer or separation of individual and then until no longer needed for conducting business, but not longer than 6 years after the event, then destroy.
IPPS-A System Manager, PEO EIS, Project Directorate IPPS-A, Hoffman II, 200 Stovall St., Alexandria, VA 22332-0010.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to Army Records, U.S. Army Human Resources Command, Attn: AHRC-PAV-V, 1 Reserve Way, St. Louis, MO 63132-5200.
For verification purposes, individuals should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
Individuals seeking written access to information about themselves contained in this system of records should address written inquiries to Army Records, U.S. Army Human Resources Command, Attn: AHRC-PAV-V, 1 Reserve Way, St. Louis, MO 63132-5200.
For verification purposes, individuals should provide their full name, Social Security Number (SSN), any details which may assist in locating records, and their signature.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)'.
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)'.
The Army's rules for accessing records and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21, The Army Privacy Program; Title 32 CFR National Defense, part 505, Army Privacy Act Program; or may be obtained from the system manager.
Data contained in this system is collected from the individuals and current Army Human Resource Offices and integrated pay systems.
None.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Dates:
An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b).
Additional information on the DRRP program can be found at:
For FY 2011 and any subsequent year in which we make awards from the list
These priorities are:
The full text of these priorities is included in the pertinent notices of final priority or priorities published in the
29 U.S.C. 762(g) and 764(a).
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2012 from the list of approved but unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program as follows: CFDA number 84.133A-9.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
The application package will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative budget justification; other required forms; an abstract, Human Subjects narrative, Part III project narrative; resumes of staff; and other related materials, if applicable.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (see
7.
Applications for grants under the DRRP on Disability in the Family, CFDA number 84.133A-9, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the DRRP on Disability in the Family at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, PCP, Washington, DC 20202-2700. Fax: (202) 245-7323.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133A-9), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133A-9), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the program under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
• The number of accomplishments (
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new NIDRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports (APRs) for these reviews.
Department of Education program performance reports, which include information on NIDRR programs, are available on the Department's Web site:
5.
Lynn Medley or Marlene Spencer as follows:
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7532 or by e-mail:
If you use a TDD call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
This notice invites applications for the first of two related competitions and announces key information for both competitions. For key dates and funding information regarding each competition, see the chart in the
The SCIMS centers program is funded through the Special Projects and Demonstrations for Spinal Cord Injuries Program. This program provides assistance for projects that provide comprehensive rehabilitation services to individuals with spinal cord injuries and conducts spinal cord research, as specified in 34 CFR 359.10 and 359.11.
The SCIMS Multi-Site Collaborative Research Projects are funded under the DRRP program. DRRPs are designed to improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended (Rehabilitation Act) by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most severe disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: Research, training, demonstration, development, dissemination, utilization, and technical assistance. An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b). Additional information on the DRRP program can be found at:
The SCIMS Centers and SCIMS Multi-Site Collaborative Research Projects priorities are from the notice of final priorities and selection criterion published elsewhere in this issue of the
These priorities are:
1.
2.
3.
The full text of these priorities are included in the pertinent notices of final priority or priorities published in the
29 U.S.C. 760 and 764(a) and 764(b)(4).
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
(a)
(b)
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA numbers 84.133N-1 and 84.133A-15.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
The application package for each of the competitions announced in this notice will provide instructions for completing all components to be included in the application. Each application must include a cover sheet (Standard Form 424); budget requirements (ED Form 524) and narrative budget justification; other required forms; an abstract, Human Subjects narrative, Part III project narrative; resumes of staff; and other related materials, if applicable.
3.
For further information or to make arrangements to attend by conference call, or for an individual consultation, contact Lynn Medley, U.S. Department of Education, Potomac Center Plaza, room 5040, 550 12th Street, SW., Washington, DC 20202. Telephone (202) 245-7338 or by e-mail:
Applications for grants under each of the competitions announced in this notice must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (see
7.
a.
Applications for grants under the Spinal Cord Injury Model Systems (SCIMS) Centers and SCIMS Multi-Site Collaborative Research Projects, CFDA number 84.133N-1 and 84.133A-15, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for Spinal Cord Injury Model Systems (SCIMS) Centers and SCIMS Multi-Site Collaborative Research Projects at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, PCP, Washington, DC 20202-2700. Fax: (202) 245-7323.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133N-1 or 84.133A-15), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133N-1 or 83.133A-15), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number,
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The Secretary is interested in hypothesis-driven research and development projects. To address this interest it is expected that applicants will articulate goals, objectives, and expected outcomes for the proposed research and development activities. It is critical that proposals describe expected public benefits, especially benefits for individuals with disabilities, and propose projects that are optimally designed to demonstrate outcomes that are consistent with the proposed goals. Applicants are encouraged to include information describing how they will measure outcomes, including the indicators that will represent the end-result, the mechanisms that will be used to evaluate outcomes associated with specific problems or issues, and how the proposed activities will support new intervention approaches and strategies, including a discussion of measures of effectiveness.
Submission of this information is voluntary except where required by the selection criteria listed in the application package.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
• The number of accomplishments (
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new NIDRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports (APRs) for these reviews.
Department of Education program performance reports, which include information on NIDRR programs, are available on the Department's Web site:
5.
Either Lynn Medley or Marlene Spencer as follows:
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5140, PCP, Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW.,
If you use a TDD call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priorities and selection criterion.
The Assistant Secretary for Special Education and Rehabilitative Services announces (1) a priority under the Special Projects and Demonstrations for Spinal Cord Injuries Program for SCIMS Centers (priority 1), and (2) a priority and selection criterion for Disability and Rehabilitation Research Projects (DRRPs) that will serve as the SCIMS Multi-Site Collaborative Research Projects (priority 2). The Assistant Secretary may use one or more of these priorities and selection criterion for competitions in fiscal year (FY) 2011 and later years. We take this action to focus attention on areas of national need.
Lynn Medley, U.S. Department of Education, 400 Maryland Avenue, SW., room 5140, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7338 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service, toll free, at 1-800-877-8339.
This notice of final priorities and selection criterion (NFP) is in concert with NIDRR's currently approved Long-Range Plan (Plan). The Plan, which was published in the
Through the implementation of the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine the best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
This notice proposes priorities and a selection criterion that NIDRR intends to use for competitions in FY 2011 and possibly later years. However, nothing precludes NIDRR from publishing additional priorities if needed. Furthermore, NIDRR is under no obligation to make an award using either of the priorities or the selection criterion. The decision to make an award will be based on the quality of applications received and available funding.
The SCIMS centers program is funded through the Special Projects and Demonstrations for Spinal Cord Injuries Program. This program provides assistance for projects that provide comprehensive rehabilitation services to individuals with spinal cord injuries, and conducts spinal cord research, as specified in 34 CFR 359.10 and 359.11.
The SCIMS Multi-Site Collaborative Research Projects are funded as DRRPs. DRRPs are designed to improve the effectiveness of services authorized under the Rehabilitation Act by developing methods, procedures, and rehabilitation technologies that advance a wide range of independent living and employment outcomes for individuals with disabilities, especially individuals with the most severe disabilities. DRRPs carry out one or more of the following types of activities, as specified and defined in 34 CFR 350.13 through 350.19: research, training, demonstration, development, dissemination, utilization, and technical assistance.
29 U.S.C. 760 and 764(a) and 764(b)(4).
We published a notice of proposed priorities and selection criterion (NPP) for NIDRR's Disability and Rehabilitation Research Projects and Centers Program in the
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not
Following the announcement of new awards under this priority, SCIMS Centers that are interested in developing module projects may identify module topics, identify potential collaborators from among the other new SCIMS Centers, and develop research protocols for the potential modules. At the first SCIMS Project Directors' meeting, Project Directors will review, discuss, and decide upon specific module projects to implement. NIDRR staff will facilitate this post-award discussion and selection of module topics for implementation among new SCIMS Center grantees. Once these module projects are agreed upon by the Project Directors, each SCIMS Center will be required to participate in at least one of the module projects.
In response to the second point raised by the commenter, NIDRR would like to maintain focus on the testing of interventions or the development of new outcomes measures and assessments. Through sustained funding of its SCIMS program, NIDRR has created a mature research infrastructure that will support the testing of interventions. NIDRR's emphasis on the testing of interventions and the development of measures to support that testing is intended to build upon this infrastructure to improve the outcomes of individuals with spinal cord injury. For this reason, we decline to revise this requirement to broaden the types of research that can be supported under this priority.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for the funding of Spinal Cord Injury Model Systems (SCIMS) centers of care (SCIMS Centers). The SCIMS Centers must provide comprehensive, multidisciplinary services to individuals with spinal cord injury (SCI) as a basis for conducting research that contributes to evidence-based rehabilitation interventions and clinical and practice guidelines. The SCIMS program is designed to generate new knowledge that can be used to improve outcomes of individuals with SCI in one or more domains identified in NIDRR's currently approved Long Range Plan, published in the
(a) Providing a multidisciplinary system of rehabilitation care specifically designed to meet the needs of individuals with SCI. The system must encompass a continuum of care, including emergency medical services, acute care services, acute medical rehabilitation services, and post-acute services;
(b) Continuing the assessment of long-term outcomes of individuals with SCI by enrolling at least 30 subjects per year into the SCIMS database, following established protocols for the collection of enrollment and follow-up data on subjects;
(c) Proposing and conducting at least one, but no more than two, site-specific research projects to test innovative approaches to treating SCI or to assessing outcomes of individuals with SCI in one or more domains identified in the Plan: health and function, participation and community living, technology, and employment.
Applicants who propose more than two site-specific research projects will be disqualified.
(d) Participating as research collaborators in at least one module project. Module projects are research collaborations with one or more other SCIMS Centers on topics of mutual interest and expertise. These module projects are carried out as part of the SCIMS Centers' activities. They are not part of the SCIMS Multi-Site Collaborative Projects, which are funded under a separate priority.
Applicants should not propose a specific module project in their application. While all SCIMS Center grantees are required to participate as research collaborators in at least one module project, they are not required to develop any module project on their own. Immediately following the announcement of new awards under this priority, those SCIMS Centers that are interested in developing module projects may identify module topics, identify potential collaborators from among the other new SCIMS Centers, and develop research protocols for the potential modules. At the first SCIMS Project Directors' meeting, Project Directors will review, discuss, and decide upon specific module projects to implement. NIDRR staff will facilitate this post-award discussion and negotiation among new SCIMS grantees. Once these module projects are agreed upon by the Project Directors, each SCIMS Center will be required to participate in at least one of them.
Each applicant under this priority must—
(1) Demonstrate, in its application, its capacity to successfully engage in multi-site collaborative research. This capacity includes access to research participants, the ability to maintain data quality, and the ability to adhere to research protocols; and
(2) Propose to spend at least 15 percent of its annual budget on participating in a module project, as described in paragraph (d) of this priority;
(e) Addressing the needs of persons with disabilities including individuals
(f) Coordinating with the NIDRR-funded Model Systems Knowledge Translation Center (MSKTC) to provide scientific results and information for dissemination to clinical and consumer audiences; and
(g) Ensuring participation of persons with disabilities in conducting SCIMS research.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for the funding of Disability and Rehabilitation Research Projects (DRRPs) to serve as Spinal Cord Injury Model Systems (SCIMS) multi-site collaborative research projects. To be eligible under this priority, an applicant must have received a grant under the SCIMS Centers priority (Proposed Priority 1 in this notice). Following completion of a competition using the SCIMS Centers priority, the Department will invite successful applicants under that competition to apply for funding under this SCIMS Multi-Site Collaborative Research Projects priority.
Each SCIMS multi-site collaborative research project must be designed to contribute to evidence-based rehabilitation interventions and clinical practice guidelines that improve the lives of individuals with spinal cord injury (SCI) through research, including the testing of approaches to treating SCI or the assessment of the outcomes of individuals with SCI. Each SCIMS multi-site collaborative research project must contribute to this outcome by—
(a) Collaborating with three or more of the NIDRR-funded SCIMS centers (for a minimum of four SCIMS sites). Applicants may also propose to include as part of their multi-site collaborative research project other SCI research sites that are not participating in a NIDRR-funded program;
(b) Conducting multi-site research on questions of significance to SCI rehabilitation, using clearly identified research designs. The research must focus on outcomes in one or more domains identified in NIDRR's currently approved Long Range Plan, published in the
(c) Demonstrating the capacity to carry out multi-site collaborative research projects, including administrative capabilities, experience with management of multi-site research protocols, and demonstrated ability to maintain standards for quality and confidentiality of data gathered from multiple sites;
(d) Addressing the needs of people with disabilities, including individuals from traditionally underserved populations;
(e) Coordinating with the NIDRR-funded Model Systems Knowledge Translation Center (MSKTC) to provide scientific results and information for dissemination to clinical and consumer audiences; and
(f) Ensuring participation of individuals with disabilities in conducting SCIMS research.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
In accordance with the provisions of 34 CFR 350.53 and 350.54 and in addition to the selection criteria specified in those sections, the Secretary will consider the following factor in evaluating applications submitted under the SCIMS Multi-Site Collaborative Research Projects priority:
The extent to which the applicant clearly documents its capacity to carry out a multi-site research project, including demonstrated administrative capabilities, experience with managing and following multi-site research protocols, and ability to maintain and meet standards for quality and confidentiality of data gathered from multiple sites.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
The potential costs associated with this final regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this final regulatory action, we have determined that the benefits of the final priorities justify the costs.
The benefits of the Disability and Rehabilitation Research Projects and Centers and the Special Projects and Demonstrations for Spinal Cord Injuries Programs have been well established over the years in that similar projects have been completed successfully. These final priorities and selection criterion will generate new knowledge through research and development. Another benefit of these final priorities and selection criterion is that the establishment of new SCIMS Centers and the DRRPs conducting SCIMS multi-site research projects will generate new knowledge to improve the lives of individuals with disabilities. The new SCIMS Centers and the SCIMS multi-site research projects will generate, disseminate, and promote the use of new information that will improve the options for individuals with spinal cord injury to perform activities of their choice in the community.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priority.
The Assistant Secretary for Special Education and Rehabilitative Services announces a funding priority for the Disability and Rehabilitation Research Projects and Centers Program administered by NIDRR. Specifically, this notice announces a priority for a center on disability in the family. The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2011 and later years. We take this action to focus research attention on areas of national need. We intend this priority to contribute to increased participation and community living within the context of family life for individuals with disabilities and their families.
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue, SW., room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700. Telephone: (202) 245-7532 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service, toll free, at 1-800-877-8339.
This notice of final priority (NFP) is in concert with NIDRR's currently approved Long-Range Plan (Plan). The Plan, which was published in the
Through the implementation of the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine the best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
This notice announces a priority that NIDRR intends to use for DRRP competitions in FY 2011 and possibly later years. However, nothing precludes NIDRR from publishing additional priorities if needed. Furthermore, NIDRR is under no obligation to make an award for this priority. The decision to make an award will be based on the quality of applications received and available funding.
29 U.S.C. 762(g) and 764(a).
We published a notice of proposed priority (NPP) for this program in the
There are no differences between the proposed priority and this final priority.
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for a Disability and Rehabilitation Research Project (DRRP) on Disability in the Family. The DRRP must contribute to the outcome of increased participation and community living for individuals with disabilities and their families.
To contribute to this outcome, the DRRP must—
1. Conduct research activities, development activities, or both;
2. Identify or develop, and test or evaluate interventions, programs, technologies, or products;
3. Conduct knowledge translation activities (
4. Involve key stakeholder groups in the activities described in paragraphs 1 through 3 in order to maximize the relevance and usability of the interventions, programs, technologies, or products to be developed or studied; and
5. Include families who are from traditionally underserved populations and who have at least one member with a disability as participants when conducting the activities described in paragraphs 1 through 3.
To contribute to this outcome, the DRRP may—
1. Focus its activities at the individual level, the family level, the systems level, or any combination of the three levels;
2. Include in its activities families with a person with a disability of any age and any disability;
3. Interpret the term “family” broadly; and
4. Choose from a wide range of research and development topics and approaches within any of the domains in NIDRR's currently approved Long Range Plan (
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
The potential costs associated with this final regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this final regulatory action, we have determined that the benefits of the final priority justify the costs.
The benefits of the Disability and Rehabilitation Research Projects and Centers Programs have been well established over the years in that similar projects have been completed successfully. This final priority will generate new knowledge through research, development, and knowledge translation activities. Another benefit of this final priority is that the establishment of a new DRRP will improve the lives of individuals with disabilities and their family members. The new DRRP will generate and promote the use of new information that will improve the community living and community participation options for individuals with disabilities and their families.
You may also access documents of the Department published in the
U.S. Department of Education.
Notice of a Closed Meeting.
This notice sets forth the schedule and proposed agenda of an upcoming closed meeting of the National Advisory Council on Indian Education (the Council) and is intended to notify the general public of the meeting. This notice also describes the functions of the Council. Notice of the Council's meetings is required under Section 10(a)(2) of the Federal Advisory Committee Act.
The National Advisory Council on Indian Education is authorized by Section 7141 of the Elementary and Secondary Education Act. The Council is established within the Department of
One of the Council's responsibilities is to develop and provide recommendations to the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction that can benefit Indian children or adults participating in any program which could benefit Indian children. Additionally, the Council makes recommendations to the Secretary for filling the position of the Director of Indian Education whenever a vacancy occurs.
The purpose of these closed meetings is to convene the Council via conference calls to interview candidates and deliberate on recommendations to the Secretary of Education for a Director of the Office of Indian Education. These closed discussions will take place June 23, 2011, 2 p.m. to 5 p.m. Eastern Daylight Savings Time and June 24, 2011, 12 p.m. to 5 p.m. Eastern Daylight Savings Time. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, this discussion is protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C.
Jenelle Leonard, Acting Director/Designated Federal Official, Office of Indian Education, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. Telephone: 202-205-2161. Fax: 202-205-5870.
A report of the activities of the closed session and related matters that are informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 21 days of the meeting. Records are kept of all Council proceedings and are available for public inspection at the at the Office of Indian Education, United States Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. Monday-Friday, 8:30 a.m.-5:00 p.m. Eastern Daylight Time.
You may also access documents of the Department published in the
Office of Fossil Energy, DOE.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an application filed on April 21, 2011, by Freeport LNG Development, L.P. (Freeport LNG), requesting blanket authorization to export liquefied natural gas (LNG) that previously had been imported into the United States from foreign sources on a short-term or spot market basis. The LNG would be exported from the existing Freeport LNG terminal facilities on Quintana Island, Texas, in an amount up to the equivalent of 24 billion cubic feet (Bcf) of natural gas to any country that has the capacity to import LNG via ocean-going carrier, and with which trade is not prohibited by U.S. law or policy. Freeport LNG seeks to export the LNG over a two year period commencing on the date of the authorization on its own behalf or as agent for others. The application is filed under section 3 of the Natural Gas Act (NGA). Protests, motions to intervene, notices of intervention, and written comments are invited.
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section of this notice, no later than 4:30 p.m., eastern time, July 11, 2011
Freeport LNG is a Delaware limited partnership with one general partner, Freeport LNG-GP, Inc., a Delaware corporation, which is owned 50% by an individual, Michael S. Smith, and 50% by ConocoPhillips Company. Freeport LNG's limited partners are: (1) Freeport LNG Investments, LLLP, a Delaware limited liability limited partnership,
On June 18, 2004, the Federal Energy Regulatory Commission (FERC) authorized Freeport LNG to site, construct and operate the Freeport LNG terminal on Quintana Island, southeast of the City of Freeport in Brazoria County, Texas. The facilities, completed in June 2008, include an LNG ship marine terminal and unloading dock, LNG transfer lines and storage tanks, high-pressure vaporizers, and a 9.6-mile long send-out pipeline extending to the Stratton Ridge meter station.
On January 15, 2008, DOE/FE granted Freeport LNG blanket authorization to import up to 30 Bcf of LNG from various international sources for a two-year term beginning March 1, 2008.
On May 6, 2009, FERC authorized certain equipment modifications at the Freeport LNG terminal as required to enable the loading and export of foreign-source LNG.
On May 28, 2009, in DOE/FE Order No. 2644 (Order 2644), DOE/FE granted Freeport LNG blanket authorization to export, on its own behalf or as agent for others, up to a total of the equivalent of 24 Bcf of foreign-source LNG from the Freeport LNG terminal over a two-year period to customers in the United Kingdom, Belgium, Spain, France, Italy, Japan, South Korea, India, China and/or Taiwan.
In the instant application, Freeport LNG is seeking blanket authorization to export LNG that previously had been imported from foreign sources, to which it holds title, as well as previously imported LNG that it may export as agent on behalf of other entities who themselves hold title, on a short-term or spot market basis from the existing Freeport LNG terminal on Quintana Island, Texas. Freeport LNG states that the current application is filed in anticipation of the expiration of the blanket export authorization granted in Order No. 2644. Freeport LNG is requesting to export an amount up to the equivalent of 24 Bcf of natural gas to any country which has the capacity to import LNG via ocean-going carrier, and with which trade is not prohibited by U.S. law or policy. Freeport LNG seeks to export the LNG over a two year period commencing on the date of the authorization
In support of its application, Freeport LNG asserts the proposed authorization is in the public interest. Under section 3 of the Natural Gas Act, as amended, an LNG export from the United States to a foreign country must be authorized unless “the proposed exportation will not be consistent with the public interest.” Section 3 thus creates a statutory presumption in favor of approval of this application, and parties opposing the authorization bear the burden of overcoming this presumption.
Freeport LNG states that there is no domestic reliance on the LNG that it seeks to export. Freeport LNG states that DOE/FE, in Order 2644, authorized the export of previously imported foreign-sourced LNG. DOE/FE determined that there was no domestic reliance on the volumes of imported LNG that Freeport sought to export. Freeport LNG states that DOE/FE has recently issued LNG blanket export authorizations to other applicants, in each case finding that existing domestic supplies are sufficient to serve U.S. markets without reliance on imported LNG supplies. Freeport LNG states that DOE/FE made the same finding in Order No. 2859, which granted the Dow Chemical Company blanket authorization to export up to an amount equivalent to 390 Bcf of previously imported LNG from the Freeport LNG terminal. In that Order, DOE/FE found that “the LNG which Dow seeks to export in this case is not needed in order to meet domestic market demand for natural gas on a competitively priced basis and that the exports of LNG authorized by this amendment will have no significant impact on the market's ability to meet the demand for natural gas domestically.”
Additionally, Freeport LNG states that traditional domestic natural gas production has been supplemented by unconventional sources, such as shale gas formations, which new technologies have made economically recoverable. Freeport LNG asserts that as a result of this increased domestic supply, domestic gas prices have remained low compared to other global markets, such as in Europe and Asia, discouraging imports to the U.S. Freeport LNG states that the imported LNG that Freeport LNG seeks to export will be surplus to the demands of U.S. markets during the period of requested authorization, and is needed primarily to enable Freeport LNG to economically maintain and operate its Freeport LNG terminal on Quintana Island. In the event that market conditions would support delivery of Freeport LNG's imported supplies to U.S. markets, the requested authorization would also serve to increase LNG supplies available for delivery to U.S. markets if those markets support it.
Freeport LNG also states in its application that local natural gas supplies will not be reduced. The applicant states that it intends to export only foreign sourced LNG, and does not intend to export domestically produced natural gas. Further, the applicant states that U.S. natural gas supplies would actually increase if the requested authorization were granted, since the boil-off gas from any LNG cargoes delivered to the Freeport LNG terminal would be sold into U.S. markets. Freeport LNG asserts that granting the requested authorization would encourage it to obtain and store spot-market LNG cargoes, making it available to supply local markets when conditions support it, thereby serving to moderate U.S. natural gas price volatility. Freeport LNG asserts that in light of these conditions, its request to export previously imported foreign-
Freeport LNG states that no change to the Freeport LNG terminal on Quintana Island would be required for the proposed export of foreign-source LNG. Thus, according to Freeport, approval of this application would not constitute a Federal action significantly affecting the human environment within the meaning of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
This export application will be reviewed pursuant to section 3 of the Natural Gas Act, as amended, and the authority contained in DOE Delegation Order No. 00-002.00L (Apr. 29, 2011) and DOE Redelegation Order No. 00-002.04E (Apr. 29, 2011). In reviewing this LNG export application, DOE will consider domestic need for the gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this application should comment in their responses on these issues.
In response to this notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention, as applicable. The filing of comments or a protest with respect to the application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the application. All protests, comments, motions to intervene or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) E-mailing the filing to
A decisional record on the application will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. A party seeking intervention may request that additional procedures be provided, such as additional written comments, an oral presentation, a conference, or trial-type hearing. Any request to file additional written comments should explain why they are necessary. Any request for an oral presentation should identify the substantial question of fact, law, or policy at issue, show that it is material and relevant to a decision in the proceeding, and demonstrate why an oral presentation is needed. Any request for a conference should demonstrate why the conference would materially advance the proceeding. Any request for a trial-type hearing must show that there are factual issues genuinely in dispute that are relevant and material to a decision and that a trial-type hearing is necessary for a full and true disclosure of the facts.
If an additional procedure is scheduled, notice will be provide