Agricultural Marketing Service
Food and Nutrition Service
Forest Service
National Institute of Food and Agriculture
Engineers Corps
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Engineers Corps
Federal Energy Regulatory Commission
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Antitrust Division
Employee Benefits Security Administration
Employment and Training Administration
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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U.S. Agency for International Development.
Final Rule.
The U.S. Agency for International Development (USAID) is removing its regulation implementing the Government-wide common rule on debarment and suspension (non-procurement), currently located in Part 208 of Title 22 of the Code of Federal Regulations (CFR), and issuing a new regulation to adopt the Office of Management and Budget (OMB) guidance at 2 CFR part 180. This regulatory action implements the OMB's initiative to streamline and consolidate into one title of the CFR all Federal regulations on debarment and suspension. These changes constitute an administrative simplification that would make no substantive change in USAID policy or procedures for debarment and suspension.
This final rule is effective on August 12, 2011 without further action. Submit comments by July 13, 2011 on any unintended changes this action makes in USAID policies and procedures for debarment and suspension. All comments on unintended changes will be considered and, if warranted, USAID will revise the rule.
You may submit comments, identified by RIN 0412-AA67 in the subject line to Ms. M. E. Yearwood, USAID—M/OAA/P, SA-44, 867B, 1300 Pennsylvania Ave., NW., Washington, DC 20523, e-mail
Melita E. Yearwood, Procurement Analyst, Office of Acquisition and Assistance, Policy Division at (202) 567-4672.
When it established Title 2 of the CFR as the new central location for OMB guidance and agency implementing regulations concerning grants and agreements [69 FR 26276, May 11, 2004], OMB announced its intention to replace common rules with OMB guidance that agencies could adopt in brief regulations. OMB began that process by proposing [70 FR 51863, August 31, 2005] and finalizing [71 FR 66431, November 15, 2006] Government-wide guidance on non-procurement suspension and debarment in 2 CFR part 180.
The guidance requires each agency to replace the common rule on debarment and suspension requirements that the agency previously issued in its own CFR title with a brief regulation in 2 CFR adopting the Government-wide policies and procedures. One advantage of this approach is that it reduces the total volume of drug-free workplace regulations. A second advantage is that it collocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.
OMB published interim final guidance in the Federal Register on August 31, 2005 [70 FR 51863]. The August 2005
As the OMB guidance requires, USAID is taking two regulatory actions. First, we are removing the debarment and suspension common rule from 22 CFR Part 208. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR Part 180 to adopt the Government-wide policies and procedures in the OMB guidance.
Taken together, these regulatory actions are solely an administrative simplification and are not intended to make any substantive change in policies or procedures. In soliciting comments on these actions, we therefore are not seeking to revisit substantive issues that were resolved during the development of the final common rule in 2003. We are inviting comments specifically on any unintended changes in substantive content that the new part in 2 CFR would make relative to the common rule at 22 CFR part 208.
Under the Administrative Procedure Act (5 U.S.C. 553), agencies generally propose a regulation and offer interested parties the opportunity to comment before it becomes effective. However, as described in the “Background” section of this preamble, the policies and procedures in this regulation have been proposed for comment two times—one time by Federal agencies as a common rule in 2003 and a second time by OMB as guidance in 2006—and adopted each time after resolution of the comments received.
This direct final rule is solely an administrative simplification that would make no substantive change in USAID's policy or procedures for debarment and suspension. We therefore believe that the rule is noncontroversial and do not expect to receive adverse comments, although we are inviting comments on any unintended substantive change this rule makes.
Accordingly, we find that the solicitation of public comments on this direct final rule is unnecessary and that “good cause” exists under 5 U.S.C. 553(b)(B) and 553(d) to make this rule effective on August 12, 2011 without further action, unless we receive adverse comment by July 13, 2011. If any comment on unintended changes is received, it will be considered and, if warranted, we will publish a timely revision of the rule.
OMB has determined this rule to be not significant for purposes of E.O. 12866.
This proposed regulatory action will not have a significant adverse impact on a substantial number of small entities.
This proposed regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.
This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.
This proposed regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
Administrative practice and procedure, Debarment and suspension, Grant programs, Grants administration, Reporting and recordkeeping requirements, Government procurement.
Administrative practice and procedure, Debarment and suspension, Grant programs, Grants administration, Reporting and recordkeeping requirements, Government procurement.
Accordingly, for the reasons set forth in the preamble, and under the authority of 5 U.S.C. 301, the USAID amends the Code of Federal Regulations, Title 2, Subtitle B, by establishing Chapter VII, consisting of part 780 and to read as follows:
Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
This part adopts the Office of Management and Budget (OMB) guidance in subparts A through I of 2 CFR part 180, as supplemented by this part, as the USAID policies and procedures for non-procurement debarment and suspension. It thereby gives regulatory effect for USAID to the OMB guidance as supplemented by this part. This part satisfies the requirements in section 3 of Executive Order 12549, “Debarment and Suspension” (3 CFR 1986 Comp., p. 189); Executive Order 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235); and section 2455 of the Federal Acquisition Streamlining Act of 1994, Public Law 103-355 (31 U.S.C. 6101 note).
This part and, through this part, pertinent portions of the OMB guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b)) apply to you if you are a—
(a) Participant or principal in a “covered transaction” (see subpart B of 2 CFR part 180 and the definition of “non-procurement transaction” at 2 CFR 180.970);
(b) Respondent in a USAID suspension or debarment action;
(c) USAID debarment or suspension official; and
(d) USAID grants officer, agreements officer, or other official authorized to enter into any type of non-procurement transaction that is a covered transaction.
The USAID policies and procedures that you must follow are the policies and procedures specified in each applicable section of the OMB guidance in subparts A through I of 2 CFR part 180 and any supplemental policies and procedures set forth in this part.
The Director, Office of Acquisition and Assistance or designee, may grant an exception permitting an excluded person to participate in a particular covered transaction. If the Director, Office of Acquisition and Assistance or designee grants an exception, the exception must be in writing and state the reason(s) for deviating from the government-wide policy in Executive Order 12549.
In addition to the contracts covered under 2 CFR 180.220(b) of the OMB guidance, this part applies to any contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the contract is to be funded or provided by the USAID under a covered non-procurement transaction and the amount of the contract is expected to equal or exceed $25,000. This extends the coverage of the USAID non-procurement suspension and debarment requirements to all lower tiers of subcontracts under covered non-procurement transactions, as permitted under the OMB guidance at 2 CFR 180.220(c) (see optional lower tier coverage in the figure in the appendix to 2 CFR part 180).
You, as a participant, must include a term or condition in lower-tier transactions requiring lower-tier participants to comply with subpart C of the OMB guidance in 2 CFR part 180, as supplemented by this subpart.
To communicate to a participant the requirements described in 2 CFR 180.435 of the OMB guidance, you must include a term or condition in the transaction that requires the participant's compliance with subpart C of 2 CFR part 180, and supplemented by subpart C of this part, and requires the participant to include a similar term or condition in lower-tier covered transactions.
The Debarring Official for USAID is the Director of the Office of Acquisition and Assistance.
The Suspending Official for USAID is the Director of the Office of Acquisition and Assistance.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Chicago Sanitary and Ship Canal (CSSC) near Romeoville, IL. This temporary final rule is intended to restrict all vessels from transiting the navigable waters of the CSSC. This safety zone is necessary to protect the waters, waterway users, and vessels from the hazards associated with U.S. Army Corps of Engineers (USACE) temporary simultaneous operation of dispersal barrier IIA and IIB.
This rule is effective on June 10, 2011. This rule will remain in effect until 5 p.m. on June 21, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0453 and are available online by going to
If you have questions on this temporary rule, contact or e-mail BM1 Adam Kraft, U.S. Coast Guard Sector Lake Michigan, at 414-747-7148 or
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 in that it would inhibit the Coast Guard's ability to protect the public from the hazards associated with the U.S. Army Corps of Engineers' simultaneous operation of electric barriers IIA and IIB.
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
In 2007, the Department of the Interior through the Fish and Wildlife Service listed the Asian Carp and the Silver Carp as Injurious Wildlife Species. Based upon testing conducted by the USACE, the Asian carp is presently migrating toward the Great Lakes through the CSSC and connected tributaries. Scientists are concerned that if these aquatic nuisance species reach the Great Lakes in sufficient numbers they might devastate the Great Lakes commercial and sport fishing industries.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as amended by the National Invasive Species Act of 1996, authorized the USACE to conduct a demonstration project to identify an environmentally sound method for preventing and reducing the dispersal of non-indigenous aquatic nuisance species through the CSSC. The USACE selected an electric barrier because it is a non-lethal deterrent with a proven history, which does not overtly interfere with navigation in the canal.
A demonstration dispersal barrier (Barrier I) was constructed and has been in operation since April 2002. It is located approximately 30 miles from Lake Michigan and creates an electric field in the water by pulsing low voltage DC current through steel cables secured to the bottom of the canal. A second barrier (Barrier IIA) was constructed 800 to 1300 feet downstream of the Barrier I. Barrier IIA is currently operating at two volts per inch, 15 Hertz and 6.5ms. Construction on Barrier IIB has been completed. Operational and safety testing was conducted in February 2011 and is being analyzed. The completion
This rule places a safety zone that will encompass all waters of the CSSC located between mile marker 296.1 (approximately 958 feet south of Romeo Road Bridge) and mile marker 296.7 (aerial pipeline located approximately 2,693 feet northeast of Romeo Road Bridge).
The Coast Guard has deemed this safety zone necessary to protect the waterways, waterway users, and vessels from hazards associated with the USACE's temporary simultaneous operation of dispersal barrier IIA and IIB. This safety zone will be enforced daily from 7 a.m. to 11 a.m. and from 1 p.m. to 5 p.m. on June 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 20th, and 21st, 2011.
During the enforcement period, Entry into, transiting, mooring, laying-up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
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.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 might be small entities: the owners or operators of vessels intending to transit or anchor on a portion of the CSSC between the hours of 7 a.m. and 11 a.m. and from 1 p.m. to 5 p.m. on June 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 20th, and 21st, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be enforced while unsafe conditions exist. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, or his or her designated representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast 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 could 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 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 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 concern 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 proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This 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 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 the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction. A final environmental analysis check list and categorical exclusion determination are 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)
(3)
(ii) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
(iii) 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, Sector Lake Michigan, to act on his or her behalf. The designated representative of the Captain of the Port, Sector Lake Michigan, will be aboard a Coast Guard, Coast Guard Auxiliary, or other designated vessel or will be on shore and will communicate with vessels via VHF channel 16 radio, loudhailer, or by phone. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF channel 16 radio or the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
(iv) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Lake Michigan, or his or her designated representative to obtain permission to do so.
(v) 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, Sector Lake Michigan, or his or her designated representative.
Environmental Protection Agency.
Direct Final Rule.
The Environmental Protection Agency (EPA or the Agency) is issuing a Direct Final Rule to revise the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous wastes when they are discarded or intended to be discarded. Currently, under the LDR program, most carbamate wastes must meet numeric concentration limits before they can be land disposed. However, the lack of readily available analytical standards makes it difficult to measure whether the numeric LDR concentration limits have been met. Therefore, we are providing as an alternative standard the use of the best demonstrated available technologies (BDAT) for treating these wastes. In addition, this action removes carbamate Regulated Constituents from the table of Universal Treatment Standards.
This Direct Final rule will be effective August 12, 2011 without further notice, unless EPA receives adverse written comment by July 13, 2011. If adverse comments are received, EPA will publish a timely withdrawal in
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-0332, by one of the following methods:
•
•
•
•
•
Mary Jackson, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. She can also be reached by telephone on 703-308-8453 or by e-mail at
EPA is publishing this rule as a Direct Final Rule because we view this action as noncontroversial and we anticipate no adverse comments. In addition, we also are choosing to issue a Direct Final Rule because waste management facilities treating carbamate wastes can potentially face curtailment of operations. That is, if they cannot demonstrate waste and treatment residual concentrations meet numerical LDR treatment standards through analytical testing, these facilities can potentially be left with no other choice than to stop treating carbamate wastes. This can be a particular problem when waste management facilities treat hazardous wastes that exhibit the characteristic of ignitability, reactivity, corrosivity, or toxicity. Without an analytical standard, they cannot reliably determine which carbamate regulated constituents are present in the characteristic waste. In addition, without a way to demonstrate waste and treatment residual carbamate concentrations through analytical testing, they cannot certify that all carbamate regulated constituents reasonably expected to be present at the point of generation of such characteristic waste, have been treated to meet all applicable treatment standards (typically numeric concentration limits appearing in the Universal Treatment Standards table found in 268.48).
Based on information we have collected and on previous LDR rulemakings pertaining to carbamate wastes, which raised identical issues and did not generate adverse comment, we do not believe that there will be adverse comments on this action. However, in the “Proposed Rules” section of today's
If we receive adverse comment, we will publish a timely withdrawal in the
If we do not receive adverse comment, the rule will take effect on August 12, 2011. Section 3010 (b) of RCRA states that rules implementing subtitle C of RCRA normally take effect six months after promulgation, but that EPA may provide for a shorter effective date for rules with which the regulated community does not need six months to come into compliance. This is such a rule, as the regulated community is able immediately to treat carbamate wastes using the designated methods of treatment.
This action applies to generators and treatment, storage and disposal facilities (TSDFs) managing EPA hazardous waste codes:
It also applies to generators and TSDFs of ignitable, corrosive, reactive and toxic hazardous wastes that are reasonably expected to contain one or more of the carbamate constituents listed above as underlying hazardous constituents at the point of the waste's generation.
We are taking direct final action to provide alternative LDR treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous waste when they are discarded or intended to be discarded. The current LDR treatment standards for these wastes are set as numeric concentration limits that must be achieved before the waste is land disposed (see 40 CFR 268.40). Today's Direct Final Rule amends the existing treatment standards by allowing carbamate wastewaters to be treated using combustion, chemical oxidation, biodegradation or carbon adsorption (CMBST, CHOXD, BIODG or CARBN; see descriptions in the table found at 40 CFR 268.42); and allowing carbamate nonwastewaters to be treated by combustion ((CMBST); see description in the table at 40 CFR 268.42) as legally permissible alternatives to the numeric concentration limits. In addition, today's Direct Final Rule removes carbamates from the Table of Universal Treatment Standards (UTS) (40 CFR 268.48), thus eliminating the obligation to treat carbamate regulated constituents to meet numeric concentration limits in order to comply with rules requiring the treatment of underlying hazardous constituents ((UHCs), see 268.40(a)(2)(i)) that are reasonably expected to be present in a waste which exhibits a hazardous waste characteristic at the point of the waste's generation.
Under sections 3004(d) through (g) of the Resource Conservation and Recovery Act (RCRA), the land disposal of hazardous wastes is prohibited unless the wastes meet the treatment standards, as generated, or are treated to meet the treatment standards established by EPA, or otherwise meet those standards. Section 3004(m) of RCRA requires EPA to set numeric concentration limits or methods of treatment that substantially diminish the hazardous waste's toxicity or substantially reduce the likelihood of hazardous constituents migrating from the waste such that short-term and long-term threats to human health and the environment posed by the waste's land
EPA promulgated the LDR “Phase III” final rule on April 8, 1996 that established treatment standards for 64 listed hazardous wastes associated with the production of a number of carbamates (61 FR 15583). These treatment standards were based on data for similar wastes for which EPA promulgated UTS in1994 (59 FR 47982) and on analytical detection limits compiled from sampling and analysis reports prepared to support the proposed listing of carbamate wastes as hazardous wastes on February 9, 1995. The treatment standards are expressed as numeric concentration limits that have to be met before land disposal can occur. All the carbamate waste constituents were added to the UTS table found at 40 CFR 268.48. EPA promulgated numeric treatment standards for these carbamate wastes in 1994 (59 FR 47982), and again in 1996 (61 FR 15583), because performance using BDAT for these wastes resulted in concentration levels that could be measured in the waste residue (and thus became the numeric treatment standard), or because after BDAT treatment, the carbamate constituent(s) could no longer be detected in the treatment residue (and thus the detection limit was set by EPA as the numeric treatment standard).
After promulgation of the Phase III rule on April 8 1996, but shortly before the treatment standards took effect on July 8, 1996, several companies in the waste management industry contacted EPA, reporting that analytical standards were not readily available for some of the carbamate constituents. An analytical standard is a standard reference material that is used to calibrate analytical instruments in order to confirm detection and quantification of a particular constituent. The Agency was unaware of the lack of analytical standards because the treatment standards were primarily based on analytical detection limits. We confirmed that analytical standards were not readily available for these carbamate constituents and realized that the waste management industry was unintentionally left in an unacceptable compliance situation: they were required to certify compliance with numeric LDR treatment standards, but commercial laboratories were not able to perform the necessary analyses for some of the newly regulated carbamate constituents. Thus, it was impossible to reliably document whether the LDR treatment standards were achieved for some carbamate wastes.
The problem was complicated when the LDR rules that pertain to meeting the treatment standards for UHCs in hazardous wastes exhibiting the characteristic of ignitability, corrosivity, reactivity, and/or toxicity were promulgated. Specifically, for characteristic wastes (or waste that at point of generation exhibited a characteristic, but that have been treated so that they no longer do so), all UHCs reasonably expected to be present in the waste at the point of generation must meet the numeric concentration limits in the 268.48 UTS table. Because of the lack of analytical standards for some of the carbamate constituents, it was impossible to identify in all cases the UHCs reasonably expected to be present in the characteristic waste at the point of generation. Likewise, treatment facilities and regulatory agencies were unable to monitor compliance with numeric LDR treatment standards for UHC carbamates.
As a result, EPA promulgated an emergency rule in 1996 (61 FR 43924, August 26, 1996) to establish temporary alternative treatment standards for several carbamate waste constituents for a one-year period, which we believed would provide sufficient time for analytical standards to be developed. The temporary alternative standards promulgated on August 26, 1996, provided the waste industry with the option of meeting the original numerical concentration limits or treating the waste by required methods of BDAT treatment: combustion for nonwastewaters, and combustion, chemical oxidation, biodegradation or carbon adsorption for wastewaters. The numeric treatment standard concentration limits were based upon the performance of these BDAT technologies, so we asserted that they would be adequate to meet the LDR treatment requirements, while avoiding the analytical problems associated with some of the carbamate constituents.
However, analytical standards were not developed as we expected during the year. Thus, in August, 1997, EPA promulgated a second emergency Direct Final Rule that extended the alternative treatment standards for one additional year (62 FR 45568, August 28, 1997). At the end of that year, the analytic problems remained unsolved so in September, 1998, we promulgated a final rule that established technology(ies) as alternative LDR treatment standards for seven carbamate wastes for which there were no analytical standards. (The rule also removed the treatment standard for one carbamate constituent (o-phhenylenediamine, because it was not able to be analyzed reliably by available analytical methods), reinstated the LDR treatment standards expressed as numerical concentration limits for 32 carbamate constituents, and provided six months for the regulated community to arrange for analysis of the 32 waste constituents that were reinstated in that rule (63 FR 47410)).
In late 2007, we also became aware of the lack of an analytical standard for yet another carbamate isomer, m-cumenyl methylcarbamate (see e-mail record from Nancy Paddock, Environmental Engineering Specialist, Veolia ES Technical Solutions to Jan Young, EPA, in RCRA Docket No. HQ-RCRA-2008-0332). An analytical standard once existed for this carbamate isomer, but it is now generally unavailable, and is too costly to specially produce. Moreover, the Agency speculates that this constituent may be phased out of production and it is neither economical nor technically feasible to continue to make an analytical standard for a constituent that soon may no longer be produced.
Given our history of promulgating alternative treatment methods for specific carbamate wastes over the years and their projected phasing out, we are convinced that the lack of analytical standards with which to calibrate analytical instruments will continue to be an endemic problem. Therefore, the Agency believes it appropriate to promulgate additional rules and provide certainty to the regulated community, and thus, are extending the alternative BDAT treatment methods to all carbamate hazardous wastes and waste constituents in today's rule. These alternative standards will apply to soil contaminated with these wastes as well. If there is no analytical standard available, then the Agency would consider that constituent “non-analyzable” and the provisions of 268.49(c)(3) would apply to the soil.
It should be noted that some of the K-listed carbamate wastes have numeric treatment standards for constituents which are not carbamates. For example, there is a numeric standard for benzene in K156 (see 268.40). Those treatment standards are unaffected by today's action. Nor is EPA reconsidering or otherwise reopening those standards for public comment.
This Direct Final Rule establishes alternative BDAT treatment standards for carbamate wastes. Because the alternative treatment standards are expressed as specified technologies, they eliminate the need for analytical testing to measure compliance with the existing numeric concentration limits for the carbamate waste constituents (
The alternative treatment standards promulgated today are: combustion ((CMBST), see description in the table 40 CFR 268.42) for nonwastewaters; and, combustion, chemical oxidation, biodegradation or carbon adsorption ((CMBST, CHOXD, BIODG or CARBN), see description in the table found at 40 CFR 268.42) for wastewaters. Because the numerical concentration limits were based upon these BDATs for treatment of carbamate wastes, we believe that they fully satisfy the core requirement of the LDR program that hazardous wastes be effectively treated to minimize short and long-term threats to human health and the environment before they are land disposed. This is the same justification for EPA's prior actions establishing these methods of treatment as alternative treatment standards for certain of the carbamate wastes, and has not been challenged or otherwise disputed.
Underlying hazardous constituents are defined in 268.40(a)(2)(i) as any constituent listed in Section 268.48, Table UTS—Universal Treatment Standards, except fluoride, selenium, sulfides, vanadium, and zinc, which can reasonably be expected to be present at the point of generation of the hazardous waste at a concentration above the constituent-specific UTS treatment standards. Hazardous waste constituents that are UHCs must be treated to meet the concentration limits specified in the UTS table. For hazardous wastes that are ignitable, corrosive, reactive, and/or toxic (
Because of the current lack of analytical standards, it is not possible to definitely determine whether carbamate constituents are reasonably expected to be present in a characteristic waste at the point of generation. Likewise, treatment facilities and regulatory agencies are unable to monitor compliance with the UTS for these constituents. To prevent situations where the generator may not realize that his characteristic waste contains carbamates as UHCs or where the treatment facility cannot certify compliance with the UTS for carbamate wastes, it is necessary to remove the carbamate constituents from the UTS table. However, because BDATs for organic wastes are generally the same as those promulgated in today's rule as alternative treatment standards for carbamate hazardous wastes, we believe that treatment of other organic wastes, if they are present in the characteristic waste, will adequately treat the carbamate constituents in the wastes.
We are also making a conforming change to the UTS table by removing footnote 6 for several hazardous waste constituents. Footnote 6 refers to the status of certain wastes during the period of August 26, 1996 to March 4, 1998, which obviously no longer applies.
Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the Federal program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the Federal program in that state. The Federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent Federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new Federal requirements did not take effect in an authorized state until the state adopted the Federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA-related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when EPA enacts Federal requirements that are more stringent or broader in scope than existing Federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the Federal program (see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt Federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous Federal regulations.
Today's rule is promulgated pursuant to HSWA authority and is neither more nor less stringent. Because RCRA section 3009 allows states to be more stringent, they do not have to adopt this provision. Today's addition of alternate treatment standards for carbamate wastes is promulgated pursuant to RCRA section 3004(m), a HSWA provision. Therefore, we are adding this rule to Table 1 in 40 CFR 271.1(j), which identifies the Federal program requirements that are promulgated pursuant to HSWA and take effect in all States, regardless of their authorization
States may apply for final authorization for the HSWA provisions in 40 CFR 271.1(j), as discussed below. Until the States receive authorization for these HSWA provisions, EPA would implement them. The procedures and schedule for final authorization of State program modifications are described in 40 CFR 271.21.
Section 271.21(e)(2) of EPA's State authorization regulations (40 CFR part 271) requires that States with final authorization to modify their programs to reflect Federal program changes and submit the modifications to EPA for approval. The deadline by which the States would need to modify their programs to adopt this regulation is determined by the date of promulgation of a final rule in accordance with section 271.21(e)(2). Once EPA approves the modification, the State requirements would become RCRA Subtitle C requirements.
States with authorized RCRA programs already may have regulations similar to those in this final rule. These State regulations have not been assessed against the Federal regulations finalized today. Thus, a State would not be authorized to implement these regulations as RCRA requirements until State program modifications are submitted to EPA and approved, pursuant to 40 CFR 271.21. Of course, States with existing regulations that are similar to those promulgated today may continue to administer and enforce their regulations as a matter of State law. In implementing the HSWA requirements, EPA will work with the States under agreements to avoid duplication of effort.
As explained above, this action augments existing LDRs by establishing alternative treatment standards expressed as technologies that may be used to treat the carbamate hazardous waste under the LDR program. For that reason, this action:
• Is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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: Federalism (64 FR 43255, August 10, 1999);
• Does not have Tribal implications as specified by Executive Order 13175: Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), because, as the rule does not make any substantive changes, it will not impose substantial direct costs on Tribal governments or preempt Tribal law;
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045: Protection of Children from Environmental Health and Safety Risks (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001);
• Does not involve technical standards; thus the requirements of § 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply; and
• Does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations under Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994) because it does not affect the level of protection provided to human health or the environment.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as (1) a small business that is primarily engaged in hazardous waste treatment and disposal as defined by NAICS code 562211 with annual receipts of less than 12.5 million dollars (based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule will not have a significant economic impact on a substantial number of small entities because its merely establishes alternative treatment standards expressed as technologies that may be used to treat the carbamate hazardous waste under the LDR program. These carbamate hazardous wastes already are subject to numeric treatment standards under the LDR program, and thus, this rule will have no new impacts. Therefore, we hereby certify that this rule will not add any new regulatory requirements to small entities, and does not require a regulatory flexibility analysis.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Hazardous waste, Land disposal restrictions.
Environmental protection, Hazardous waste.
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 6905, 6912(a), 6921, and 6924.
42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.
(j) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS, upon application from Neptune LNG LLC (Neptune), is issuing regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the unintentional taking of marine mammals, by harassment, incidental to port commissioning and operations, including maintenance and repair activities, at the Neptune Deepwater Port (the Port) in Massachusetts Bay for the period of July 2011 through July 2016. These regulations, which allow for the issuance of Letters of Authorization (LOAs) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Effective from July 11, 2011, through August 10, 2016.
A copy of Neptune's application may be obtained by writing to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East West Highway, Silver Spring, MD 20910, calling the contact listed under
The Final Environmental Impact Statement (Final EIS) on the Neptune Deepwater Port License Application authored by the Maritime Administration (MARAD) and U.S. Coast Guard (USCG) is available for viewing at
Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289, ext 156.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
On December 14, 2009, NMFS received an application from Neptune for the taking, by harassment, of marine mammals incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port (Port) facility in Massachusetts Bay. NMFS reviewed Neptune's application and identified a number of issues requiring further clarification. After addressing comments from NMFS, Neptune modified its application and submitted a revised application on March 11, 2010. The March 11, 2010, application was the one made available for public comment and considered by NMFS for these regulations.
Neptune submitted its first complete application to NMFS on December 27, 2007, for the take of small numbers of marine mammals, by harassment, incidental to the construction phase of the Neptune LNG Port Facility. In June 2008, NMFS issued a 1-year Incidental Harassment Authorization (IHA) to Neptune for the construction of the Port (73 FR 33400, June 12, 2008). This authorization expired on June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the completion of construction and beginning of Port operations on June 26, 2009 (74 FR 31926, July 6, 2009), which expired on June 30, 2010.
On July 12, 2010, NMFS issued a third IHA to Neptune based on the request in its March 11, 2010, application (75 FR 41440, July 16, 2010). This latest IHA is effective through July 11, 2011. During the period of this third IHA, Neptune conducted limited port operations.
During the effective period of this final rule (July 2011-July 2016), Neptune intends to continue port operations (including commissioning of its second shuttle regasification vessel [SRV]) and conduct maintenance and repairs, as needed. The Neptune Port is located approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The purpose of the Port is to import liquefied natural gas (LNG) into the New England region. Take of marine mammals may occur during port operations from thruster use during maneuvering of the SRVs while docking and undocking, occasional weathervaning (turning of a vessel at anchor from one direction to another under the influence of wind or currents) at the Port, and during thruster use of dynamic positioning (DP) maintenance vessels should a major repair be necessary. Neptune requested authorization to take 12 marine mammal species by Level B harassment. The species are: North Atlantic right whale; humpback whale; fin whale; sei whale; minke whale; long-finned pilot whale; Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the 2009 and 2010 IHAs, NMFS also authorized take of killer whales and gray seals. NMFS has determined that it would be appropriate in this final rule to authorize take, by Level B harassment only, incidental to operations and maintenance activities of these two species as well. In this final rule, NMFS has authorized the take, by Level B harassment, of all 14 marine mammal species listed here.
On March 23, 2007, Neptune received a license from MARAD to own, construct, and operate a deepwater port. The Port, which is located in Massachusetts Bay, consists of a submerged buoy system to dock specifically designed LNG carriers approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The two buoys are separated from one another by a distance of approximately 2.1 mi (3.4 km). The locations of the Neptune Port and the associated pipeline are shown in Figure 2-1 in Neptune's application (see
All construction of the Neptune Port was completed in November 2009. The first SRV was commissioned in February-March 2010. Between July 2011 and July 2016, (the time period for these regulations), Neptune plans to continue Port operations (including commissioning of its second SRV) and also plans to conduct any necessary maintenance and repairs of the Port facility.
Neptune will be capable of mooring LNG SRVs with a capacity of approximately 183,113 cubic yards (yd
The SRVs will be equipped to store, transport, and vaporize LNG and to odorize, meter and send out natural gas by means of two 16-in (40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers and flowline will lead to a 24-in (61-cm) gas transmission pipeline connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin Hubline
Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a diverse assemblage of marine mammals, including: The North Atlantic right whale; blue whale; fin whale; sei whale; minke whale; humpback whale; killer whale; long-finned pilot whale; sperm whale; Atlantic white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Of the species listed here, the North Atlantic right, blue, fin, sei, humpback, and sperm whales are all listed as endangered under the Endangered Species Act (ESA) and as depleted under the MMPA. The northern coastal stock of bottlenose dolphins is considered depleted under the MMPA. Certain stocks or populations of killer whales are listed as endangered under the ESA or depleted under the MMPA; however, none of those stocks or populations occurs in the activity area.
Of these species, 14 are expected to occur in the area of Neptune's operations. These species include: The North Atlantic right, humpback, fin, sei, minke, killer, and long-finned pilot whales; Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor porpoise; and harbor and gray seals. Neptune used information from the Cetacean and Turtle Assessment Program (CETAP; 1982) and the U.S. Navy's Marine Resource Assessment (MRA) for the Northeast Operating Areas (DoN, 2005; available on the Internet at:
The proposed rule contains a discussion of 17 marine mammal species that are not considered further in the analysis because of their rarity in the Massachusetts Bay area (blue whale, sperm whale, harp seal, hooded seal, ringed seal, northern bottlenose whale, Cuvier's beaked whale, Sowerby's beaked whale, Blainville's beaked whale, Gervais' beaked whale, True's beaked whale, beluga whale, pantropical spotted dolphin, false killer whale, pygmy sperm whale, striped dolphin, and Atlantic white-beaked dolphin). The proposed rule also contains brief summaries on several commonly sighted marine mammal species distribution and abundance in the vicinity of the action area. The “Description of Marine Mammals in the Area of the Specified Activity” has not changed from the proposed rule. Please refer to the proposed rule (75 FR 80260, December 21, 2010) for the complete discussion.
Additionally, information on those species that may be impacted by this activity is provided in Neptune's application and sections 3.2.3 and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall
• Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 22 kHz (however, a study by Au
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 14 marine mammal species (12 cetacean and two pinniped species) are likely to occur in the Neptune Port area. Of the 12 cetacean species likely to occur in Neptune's project area, five are classified as low frequency cetaceans (
With respect to the MMPA, NMFS' effects assessment serves four primary purposes: (1) To prescribe the permissible methods of taking (
Potential effects of Neptune's proposed port operations and maintenance/repair activities would most likely be acoustic in nature. LNG port operations and maintenance/repair activities introduce sound into the marine environment. Potential acoustic effects on marine mammals relate to sound produced by thrusters during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the port, and during thruster use of DP maintenance vessels should a major repair be necessary. The potential effects of sound from the activities associated with the Neptune Port might include one or more of the following: tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson
In the “Potential Effects of Specified Activities on Marine Mammals” section of the proposed rule, NMFS included a qualitative discussion of the different ways that port operations and repair and maintenance activities may potentially affect marine mammals. Marine mammals may experience masking and behavioral disturbance. The information contained in the “Potential Effects of Specified Activities on Marine Mammals” section from the proposed rule has not changed. Please refer to the proposed rule for the full discussion (75 FR 80260, December 21, 2010).
The primary potential impacts to marine mammals and other marine species are associated with elevated sound levels produced by the Port operations and maintenance/repair activities. However, other potential impacts from physical disturbance are also possible. Major repairs to the Neptune port and pipeline may affect marine mammal habitat in several ways: cause disturbance of the seafloor; increase turbidity slightly; and generate additional underwater sound in the area. These underwater sound levels will cause some species to temporarily disperse from or avoid repair areas, but they are expected to return shortly after the repair is completed. Operation of the Port will result in long-term, continued disturbance of the seafloor, regular withdrawal of seawater, and generation of underwater sound. The proposed rule contained a full discussion of the potential impacts to marine mammal habitat and prey species in the project area. No changes have been made to that discussion. Please refer to the proposed rule for the full discussion of potential impacts to marine mammal habitat (75 FR 80260, December 21, 2010). NMFS has determined that Neptune's proposed port operations and maintenance/repair activities are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
Neptune proposed several mitigation measures in the application (see
Neptune submitted a “Marine Mammal Detection, Monitoring, and Response Plan for the Operations Phase” (the Plan) as part of its MMPA application (Appendix D of the application; see
The 500-yd (457 m) safety zone for North Atlantic right whales is based on the approach regulation found at 50 CFR 224.103. The 100 yd (91 m) safety zone for other marine mammal species was taken from measures included in the 2007 Biological Opinion completed by NMFS' Northeast Regional Office. Any maintenance and/or repairs needed shall be scheduled in advance during the May 1 to November 30 seasonal window, whenever possible, so that disturbance to North Atlantic right whales will be largely avoided. If the repair cannot be scheduled during this time frame, additional mitigation measures are required in these regulations and described in part (2) of this section.
(A) During repairs, if a marine mammal is detected within 0.6 mi (1 km) of the repair vessel (or acoustically), the vessel superintendent or on-deck supervisor will be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area.
(B) Repair vessels will cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels will cease any movement in the area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, will also be required to maintain these separation distances.
(C) Repair vessels will cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa.
(D) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species) or if the marine mammal has not been re-sighted in the established zones for 30 minutes.
(E) While under way, all repair vessels will remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals, unless constrained by human safety concerns or navigational constraints.
(F) All repair vessels 300 gross tons or greater will maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the repair site will contact the Mandatory Ship Reporting System, the USCG, or the protected species observers (PSOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA.
(G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB.
If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, Neptune is required to implement the following additional mitigation measures:
(A) If on-board PSOs do not have at least 0.6-mi (1-km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and divers brought on board until visibility is adequate to see a 0.6-mi (1-km) range. At the time of shutdown, the use of thrusters must be minimized to the lowest level needed to maintain personnel safety. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down and will document such activities in the data log.
(B) Prior to leaving the dock to begin transit, the barge will contact one of the
(C) Neptune or its contractor shall provide a half-day training course to designated crew members assigned to the transit barges and other support vessels who will have responsibilities for watching for marine mammals. This course shall cover topics including, but not limited to, descriptions of the marine mammals found in the area, mitigation and monitoring requirements contained in the LOA, sighting log requirements, and procedures for reporting injured or dead marine mammals. These designated crew members will be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew members will sign into a bridge log book upon the start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during watch will be recorded in the log book. Any whale sightings within 3,281 ft (1,000 m) of the vessel will result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will result in idle speed and/or ceasing all movement.
(D) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug will be 5 knots (9.3 km/hr).
(E) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels will operate at 5 knots (9.3 km/hr) or less at all times within 3.1 mi (5 km) of the repair area.
Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS' regulations at 50 CFR 224.105 that implement speed restrictions to reduce the likelihood and severity of ship strikes of right whales:
• CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42° 12′ N. latitude;
• Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42°30′ N. 69°45′ W.; thence to 42°30′ N. 70°30′ W.; thence to 42°12′ N. 70°30′ W.; thence to 42°12′ N. 70°12′ W.; thence to 42°04′56.5″ N. 70°12′ W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′ N.; thence due east to 41°41′ N. 69°45′ W.; thence back to starting point; and
• Great South Channel (GSC) SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:
(A) When approaching and departing from the Neptune Port, SRVs shall use the Boston Traffic Separation Scheme (TSS) starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a “heightened awareness” mode of operation, which is outlined in great detail in the Plan (see Neptune's application).
(B) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs; more information on the acoustic devices is contained in the “Monitoring and Reporting” section later in this document) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Plan, require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune.
(C) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan in Neptune's application, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts, and it is enforceable by the USCG in accordance with the 33 CFR 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune.
(D) Neptune will ensure that other vessels providing support to Neptune operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales.
In addition to the mitigation measures in Neptune′s application, NMFS has required the following measures in these regulations in order to ensure the least practicable adverse impact on the affected species or stocks:
(1) Neptune must immediately suspend any repair and maintenance or operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the LNG facility activities. Upon finding a dead or injured marine mammal, Neptune must contact NMFS, the Northeast Stranding and Disentanglement Program, and the USCG. NMFS will review the documentation submitted by the PSO and attempt to attribute a cause of death. Activities will not resume until review and approval has been given by NMFS.
(2) PSOs will direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel.
(3) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.
NMFS has carefully evaluated the applicant's proposed mitigation measures and 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. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• 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 described above, including the adaptive management component (see the “Adaptive Management” section later in this document), provide the means of effecting the least practicable adverse impact 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)(A) of the MMPA states that NMFS must, where applicable, 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 ITAs 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.
Neptune proposed both visual and acoustic monitoring programs in the Plan contained in the application. Summaries of those plans, as well as the proposed reporting, are contained here.
Neptune LNG will deploy and maintain a passive acoustic detection network along a portion of the TSS and in the vicinity of Neptune. This network will consist of autonomous recording units (ARUs) and near-real-time ABs. To develop, implement, collect, and analyze the acoustic data obtained from deployment of the ARUs and ABs, as well as to prepare reports and maintain the passive acoustic detection network, Neptune LNG has engaged the Cornell University Bioacoustic Research Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic Institution (WHOI) in Woods Hole, Massachusetts.
During June 2008, an array of 19 passive seafloor ARUs was deployed by BRP for Neptune. The layout of the array centered on the terminal site and was used to monitor the noise environment in Massachusetts Bay in the vicinity of Neptune during construction of the Port and associated pipeline lateral. The ARUs were not designed to provide real-time or near-real-time information about vocalizing whales. Rather, archival noise data collected from the ARU array were used for the purpose of understanding the seasonal occurrences and overall distributions of whales (primarily North Atlantic right whales) within approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will maintain these ARUs in the same configuration for a period of 5 years during operation of the Neptune Port in order to monitor the actual acoustic output of port operations and to alert NOAA to any unanticipated effects of port operations, such as large scale abandonment by marine mammals of the area. To further assist in evaluations of Neptune's acoustic output, source levels associated with DP of SRVs at the buoys will be estimated using empirical measurements collected from the passive detection network. If it is determined that this network is insufficient to collect the data, then source levels shall be collected from a platform as close as practicable to thrusters while in use.
In addition to the ARUs, Neptune LNG has deployed 10 ABs within the Separation Zone of the TSS for the operational life of the Port. The purpose of the AB array is to detect the presence of vocalizing North Atlantic right whales. Each AB has an average detection range of 5.8 mi (9.3 km) from the AB, although detection ranges will vary based on ambient underwater conditions. The AB system will be the primary detection mechanism that alerts the SRV Master to the occurrence of right whales in the TSS and triggers heightened SRV awareness. The configurations of the ARU array and AB network (see Figure 3 in the Plan in Neptune's application) were based upon configurations developed and recommended by NOAA personnel.
Each AB deployed in the TSS will continuously screen the low-frequency acoustic environment (less than 1,000 Hz) for right whale contact calls occurring within an approximately 5.8-mi (9.3-km) radius from each buoy (the ABs' detection range) and rank detections on a scale from 1 to 10. Each AB shall transmit up to 10 clips with ratings 6-10 in near-real-time via Iridium satellite link to the BRP server Web site every 20 minutes during periods of heightened awareness (otherwise AB detections are transmitted at a rate of 5 clips per 6 hours). This 20-minute transmission schedule was determined by consideration of a combination of factors including the tendency of right whale calls to occur in clusters (leading to a sampling logic of listening for other calls rather than transmitting immediately upon detection of a possible call) and the amount of battery power required to complete a satellite transmission. Additional details on the protocol can be found in Neptune's application.
Additional passive acoustic monitoring shall be required, on a case-by-case basis, during both planned and emergency repair activities in order to better detect right whales in the area of repair work and to collect additional data on the noise levels produced during repair and maintenance activities. Neptune shall work with NOAA (NMFS and SBNMS) to evaluate when to install real-time passive acoustic detection buoys to provide early warnings for potential occurrence of right whales in the vicinity of the repair area. The number of passive acoustic detection buoys installed around the activity site, if deemed necessary, shall be commensurate with the type and spatial extent of maintenance/repair work required but must be sufficient to detect vocalizing right whales within the 120-dB impact zone. In addition, Neptune shall provide NMFS with empirically measured source level data for all sources of noise associated with LNG port maintenance and repair activities. Measurements shall be carefully planned and coordinated with noise-producing activities and shall be collected from the passive detection network.
During maintenance- and repair-related activities, Neptune LNG shall employ qualified PSOs on each vessel that has a DP system. All PSOs must
The PSOs shall monitor the area where maintenance and repair work is conducted using the naked eye, hand-held binoculars, and/or power binoculars (
While an SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch. In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters, an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered to be in “heightened awareness” status. However, when regasification activities conclude and the SRV prepares to depart from Neptune, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master.
Since the Neptune Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from Neptune shall report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system.
For major repair work associated with the pipeline lateral or other port components, Neptune LNG shall notify the appropriate NOAA personnel as soon as practicable after it is determined that repair work must be conducted. During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly report must include data collected for each distinct marine mammal species observed in the project area during the period of the repair activity. The weekly reports shall include the following:
• The location, time, and nature of the pipeline lateral repair activities;
• Whether the DP system was operated and, if so, the number of thrusters used and the time and duration of DP operation;
• Marine mammals observed in the area (number, species, age group, and initial behavior);
• The distance of observed marine mammals from the repair activities;
• Observed marine mammal behaviors during the sighting;
• Whether any mitigation measures were implemented;
• Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover,
• Condition of the marine mammal observation (visibility and glare); and
• Details of passive acoustic detections and any action taken in response to those detections.
For minor repairs and maintenance activities, the following protocols will be followed:
• All vessel crew members will be trained in marine mammal identification and avoidance procedures;
• Repair vessels will notify designated NOAA personnel when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work, as soon as practicable after it is determined that repair work must be conducted;
• Vessel crews will record/document any marine mammal sighting(s) during the work period; and
• At the conclusion of the repair/maintenance work, a report will be delivered to designated NOAA personnel describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work.
During all phases of project repair/maintenance activities and operation, sightings of any injured or dead marine mammals will be reported immediately to the USCG, NMFS, and the Northeast Stranding and Disentanglement Program, regardless of whether the injury or death is caused by project activities. Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (
An annual report on marine mammal monitoring and mitigation will be submitted to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office, on August 1 of each year. The annual report shall cover the time period of January 1 through December 31 of the previous year for each year of activity. The weekly and annual reports shall include data collected for each distinct marine mammal species observed in the project area in Massachusetts Bay during the period of LNG facility operations and repair/maintenance activities. The annual report shall also include a description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance
In addition to annual reports, Neptune must submit a draft comprehensive final report to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office, 180 days prior to the expiration of these regulations. This comprehensive technical report shall provide full documentation of methods, results, and interpretation of all monitoring during the first 4.5 years of the LOA. A revised final comprehensive technical report, including all monitoring results during the entire period of the LOAs will be due 90 days after the end of the period of effectiveness of the regulations.
Throughout the construction period (July 2008-November 2009 with work stoppages during peak right whale season), Neptune submitted weekly reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by PSOs is generally useful to indicate the presence or absence of marine mammals (often to a species level) within the safety zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusory, it is worth noting that no instances of obvious behavioral disturbance as a result of Neptune's activities were observed by the PSOs. Of course, these observations only cover the animals that were at the surface and within the distance that the PSOs could see. Neptune has not yet conducted any repair or maintenance activities at the Port.
As described previously in this document, Neptune was required to maintain an acoustic array to monitor calling North Atlantic right whales (humpback and fin whale calls were also able to be detected). The ARUs log continuous acoustic data for up to 110 days per each deployment. At the end of each ARU recording cycle, the 19 units are recovered by BRP personnel. The data are analyzed based on seven objectives, which are as follows: (1) Determine daily presence of fin whale sounds; (2) determine daily presence of humpback whale sounds; (3) determine hourly presence of right whale sounds; (4) estimate locations and numbers of vocalizing right whales in the monitoring area each day; (5) estimate sound exposure for each locatable vocalizing whale; (6) assess noise conditions; and (7) improve analysis software applications.
Cornell BRP analyzed the data and submitted a report covering the initial construction phase of the project, which occurred in 2008. While acoustic data can only be collected if the animals are actively calling, the report indicates that humpback and fin whales were heard calling on at least some of the ARUs on all construction days, and right whale calls were heard only 28 percent of the time during active construction days. Background noise analysis revealed definite increases in acoustic noise in association with the different types of construction activities with increases highest in the right whale band and next highest in the humpback band. The report asserted that the influence of construction activities on the acoustic habitat that was monitored could not be adequately evaluated by simply counting the number of detected whales exposed to a received noise level above 120 dB.
The September 2010 ARU quarterly passive acoustic monitoring status report indicates that only a small portion of the 2010 data have been analyzed to date. The final
The AB network has been deployed and operational in the Boston TSS since January 2010. Acoustic data from these buoys are sent to the BRP Cornell lab in near-real-time for analysis for the presence of North Atlantic right whales in the monitoring area. Positive North Atlantic right whale detections are relayed to SRVs during transit through the shipping lanes. The cycle of data analysis and information submission is a 24 hrs/day, 7 days/week operation when SRVs are in the monitoring area. To date, Cornell has prepared and submitted two reports for the AB system for 2010: January-June time period and July-September time period.
There are two monitoring conditions that dictate the tasks performed by analysts at BRP: “normal” monitoring conditions and “heightened watch” monitoring conditions. During “normal” monitoring conditions (
NMFS has included an adaptive management component in the regulations governing the take of marine mammals incidental to operation and repair/maintenance activities at the Neptune Port. In accordance with 50 CFR 216.105(c), regulations for the proposed activity must be based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review and comment. The use of adaptive management will allow NMFS to consider new information from different sources to determine if mitigation or monitoring measures should be modified (including additions or deletions) if new data suggest that such modifications are appropriate for subsequent LOAs.
The following are some of the possible sources of applicable data:
• Results from Neptune's monitoring from the previous year;
• Results from general marine mammal and sound research; or
• Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
If, during the effective period of the regulations, new information is presented from monitoring, reporting, or research, these regulations may be modified, in whole, or in part after notice and opportunity for public review and comment, as allowed for in 50 CFR 216.105(c). In addition, LOAs shall be withdrawn or suspended if, after notice and opportunity for public comment, the Assistant Administrator finds, among other things, that the regulations are not being substantially complied with or the taking allowed is having more than a negligible impact on the species or stock, as allowed for in 50 CFR 216.106(e). That is, should substantial changes in marine mammal populations in the project area occur or monitoring and reporting show that the Port operations are having more than a negligible impact on marine mammals, then NMFS reserves the right to modify the regulations and/or withdraw or suspend LOAs after public review and comment.
On December 21, 2010 (75 FR 80260), NMFS published a proposed rule in response to Neptune's request to take marine mammals incidental to port commissioning and operations, including maintenance and repair activities, at its Deepwater Port in Massachusetts Bay and requested comments, information, and suggestions concerning the request. During the 45-day public comment period, NMFS received comments from two private individuals and the Marine Mammal Commission (MMC). NMFS has responded to these comments here.
The MMC is concerned that the presence of these errors and omissions in the proposed rule may have compromised the public's opportunity to comment meaningfully on the proposed authorization. Without seeing the new analyses, it is difficult to know whether the final rule will differ significantly enough from the proposed rule that an additional opportunity for public review and comment should be provided. Therefore, the MMC recommends that NMFS allow for an additional opportunity for public review and comment before publication of a final rule if the recalculated takes or zones in which takes might occur are significantly greater than those described in the proposed rule. If NMFS determines that additional notice and opportunity to comment are not needed, the MMC recommends that NMFS ensure that the revised estimates of the zones of exposure and anticipated takes for each of the three proposed activities are provided in the final rule, together with the rationale for not providing an additional opportunity for public review and comment.
As noted by the MMC, NMFS inadvertently did not estimate takes from weathervaning in the proposed rule. Takes from this activity (in
In December 2009, LGL Limited completed a Second Supplementary Biological Effects Report titled
• DP during thruster use for docking and undocking: Radius of 2.33 mi (3.75 km) and an area of 17.06 mi
• Weathervaning: Radius of 3.2 mi (5.15 km) and an area of 32.17 mi
• Repair and maintenance activities: Radius of 4.38 mi (7.05 km) and an area of 60.29 mi
The radius for DP increased only slightly between the proposed and final rules from 1.9 mi (3 km) to 2.33 mi (3.75 km). The increase in radius (and therefore ZOI) from repair and maintenance activities had a more dramatic increase between the proposed and final rules: 2.4 mi (3.9 km) to 4.38 mi (7.05 km). However, the radius for repair and maintenance activities assumes that all such activities would be similar to construction activities. Activities during construction were noisier and required more vessels on site at the same time than what would be expected for most repair or maintenance type activities. Therefore, this radius and associated ZOI are likely overestimates, as many of the activities would not occur on this large of a scale.
As noted by the MMC, NMFS used an extremely conservative hypothetical strip width in the proposed rule to derive density estimates. By doing so, the density estimates were severely inflated. NMFS has reviewed the 2006 NCCOS report from which data were used to determine species densities. Some of the data used a strip-transect survey method. The value for this was 2.3 mi (3.7 km). In order to convert a strip-transect value to a line transect for the strip width, one must divide the strip transect width by 2. Therefore, in this final rule, NMFS has used a strip width of 1.15 mi (1.85 km) to derive density estimates for the seven species discussed in the NCCOS (2006) report. This value is more realistic of actual field conditions than the original value used in the proposed rule. By using this larger strip width, the take estimates dropped dramatically (especially for DP thruster use), even with the larger ZOIs. The take estimates for DP thruster use with the lower density estimates and larger ensonified areas decreased by nearly three times the values in the proposed rule.
NMFS has determined that there does not need to be another opportunity for public comment on this rule based merely on the fact that the take estimates have been revised. When all of the recommended modifications to the take estimates were made (
PSOs are on-duty continuously to monitor for the presence of marine mammals. This includes work done during nighttime hours. Two PSOs are on-watch at all times and take turns during the shift between being the
Section 101(a)(5)(A) of the MMPA and its implementing regulations require NMFS to consider a request for the taking of marine mammals incidental to a specified activity within a specified geographical region and, assuming certain findings can be made, to authorize the taking of small numbers of marine mammals while engaged in that activity. NMFS has defined “specified activity” in 50 CFR 216.103 as “any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals.” When making a negligible impact determination, NMFS considers the total impact during each 5-year period resulting from the specified activity only and supports its determination by relying on factors such as: (1) The number of anticipated mortalities from the activity; (2) the number and nature of anticipated injuries from the activity; (3) the number, nature, intensity, and duration of Level B harassment resulting from the activity; and (4) the context in which the takes occur.
NMFS considered the impacts analyses (
Moreover, NMFS gave careful consideration to a number of other issues and sources of information. In particular, NMFS relied upon a number of scientific reports, including the 2009 and 2010 U.S. Atlantic and Gulf of Mexico Marine Mammal SARs to support its findings. The SARs contain a description of each marine mammal stock, its geographic range, a minimum population estimate, current population trends, current and maximum net productivity rates, optimum sustainable population levels and allowable removal levels, and estimates of annual human-caused mortality and serious injury through interactions with commercial fisheries. NMFS also used data from the 2006 NCCOS report to determine density levels of several of the marine mammal species in the proposed activity area.
After careful consideration of the proposed activities, the context in which Neptune's proposed activities would occur, the best available scientific information, and all effects analyses (including cumulative effects), NMFS has determined that the taking from the specified activities: (1) Would not result in more than the behavioral harassment (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].” Only take by Level B harassment is anticipated as a result of Neptune's operational and repair/maintenance activities. Anticipated take of marine mammals is associated with thruster sound during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the Port, and during thruster use of DP maintenance vessels should a major repair be necessary. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 110 dB (rms). Certain species may have a behavioral reaction to the sound emitted during the activities; however, hearing impairment as a result of these activities is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the required speed restriction measures that were described earlier in this document.
For continuous sounds, such as those produced by Neptune's activities, NMFS uses a received level of 120-dB (rms) to indicate the onset of Level B harassment. The basis for Neptune's “take” estimate is the number of marine mammals that potentially could be exposed to sound levels in excess of 120 dB. This has been determined by applying the modeled ZOI to the seasonal use (density) of the area by marine mammals and correcting for seasonal duration of sound-generating activities and estimated duration of individual activities when the maximum sound-generating activities are intermittent to occasional. Nearly all of the required information is readily available in the MARAD/USCG Final EIS, with the exception of marine mammal density estimates for the project area. In the case of data gaps, a conservative approach was used to ensure that the potential number of takes is not underestimated, as described next.
Based on comments received from the MMC, NMFS has reevaluated the take estimates. The following factors for developing the take estimates have been taken into account in this final rule, which were not considered in the proposed rule:
• Takes from weathervaning were also estimated (in addition to takes from thruster use during DP and repair and maintenance activities, which were estimated in the proposed rule);
• The ZOIs for each of the three activities listed here are taken from Appendix C3 in Neptune's application, which are taken from in-situ measurements and incorporated into models in Neptune's application instead of the ZOIs from earlier reports, which were used in the proposed rule; and
• Density estimates were derived using a strip width of 1.15 mi (1.85 km) instead of the overly conservative strip width of 0.25 mi (0.4 km) used in the proposed rule.
In December 2009, LGL Limited completed a Second Supplementary Biological Effects Report titled
• DP during thruster use for docking and undocking: Radius of 2.33 mi (3.75 km) and an area of 17.06 mi
• Weathervaning: Radius of 3.2 mi (5.15 km) and an area of 32.17 mi
• Repair and maintenance activities: Radius of 4.38 mi (7.05 km) and an area of 60.29 mi
Additionally, in the calculation of take from repair and maintenance activities, the proposed rule determined that such activities may only need to occur for 14 days each year. However, after a reevaluation, NMFS has determined that it would be more appropriate to assume 28 days per year for repair and maintenance activities. While some repairs may take 3-4 weeks in any given year, there is also the possibility that some years may not have any repair or maintenance activities occur.
NMFS recognizes that baleen whale species other than North Atlantic right whales have been sighted in the project area from May to November. However, the occurrence and abundance of fin, humpback, and minke whales is not well documented within the project area. Nonetheless, NMFS used the data on cetacean distribution within Massachusetts Bay, such as those published by the NCCOS (2006), to determine potential takes of marine mammals in the vicinity of the project area. Neptune presented density estimates using the CETAP (1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses information from these sources; however, it also includes information from some other studies. Therefore, NMFS used density information for the species that are included in the NCCOS (2006) report. These species include: North Atlantic right, fin, humpback, minke, pilot, and sei whales and Atlantic white-sided dolphins.
The NCCOS study used cetacean sightings from two sources: (1) The North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at NMFS' Northeast Fisheries Science Center (NEFSC). The NARWC data contained survey efforts and sightings data from ship and aerial surveys and opportunistic sources between 1970 and 2005. The main data contributors included: The CETAP, the Canadian Department of Fisheries and Oceans, the Provincetown Center for Coastal Studies, International Fund for Animal Welfare, NEFSC, New England Aquarium, WHOI, and the University of Rhode Island. A total of 406,293 mi (653,725 km) of survey track and 34,589 cetacean observations were provisionally selected for the NCCOS study in order to minimize bias from uneven allocation of survey effort in both time and space. The sightings-per-unit-effort (SPUE) was calculated for all cetacean species by month covering the southern Gulf of Maine study area, which also includes the project area (NCCOS, 2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was contracted from 1980 to 1988 by NEFSC to provide an assessment of the relative abundance and distribution of cetaceans, seabirds, and marine turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The CSAP program was designed to be completely compatible with NEFSC databases so that marine mammal data could be compared directly with fisheries data throughout the time series during which both types of information were gathered. A total of 8,383 mi (5,210 km) of survey distance and 636 cetacean observations from the MBO data were included in the NCCOS analysis. Combined valid survey effort for the NCCOS studies included 913,840 mi (567,955 km) of survey track for small cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study then combined these two data sets by extracting cetacean sighting records, updating database field names to match the NARWC database, creating geometry to represent survey tracklines and applying a set of data selection criteria designed to minimize uncertainty and bias in the data used.
Based on the comprehensiveness and total coverage of the NCCOS cetacean distribution and abundance study, NMFS calculated the estimated take number of marine mammals based on the most recent NCCOS report published in December, 2006. A summary of seasonal cetacean distribution and abundance in the project area was provided in the proposed rule, in the “Description of Marine Mammals in the Area of the Specified Activity” section (75 FR 80260, December 21, 2010). For a detailed description and calculation of the cetacean abundance data and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Based on the data, the relative abundance of North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 2 in this document outlines the density, abundance, take estimates, and percent of population for the 14 species for which NMFS is authorizing Level B harassment.
In calculating the area density of these species from these linear density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This is larger than the extremely conservative hypothetical strip width of 0.25 mi (0.4 km) that was used in the proposed rule. This revised strip width is based on the distance of
Based on the calculation, the estimated take numbers by Level B harassment on an annual basis for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, within the 120-dB ensonified area during DP of thrusters for docking and undocking of approximately 17.06 mi
Based on the same calculation method described above for DP thruster use (but using the 120-dB ZOI of approximately 60.29 mi
The third activity that has the potential to take marine mammals is weathervaning in order to maintain position at the Port. This activity is not anticipated to occur for more than 8 days in any given year. Therefore, the take estimates are based on the possibility of weathervaning occurring for up to 8 days for all species except sei whales. Again, since sei whales only occur in the area in spring, the estimate for this species was calculated at one-quarter the rate (
The total estimated annual take of each of these species as a result of all three activities with the potential to incidentally take marine mammals (
In addition, bottlenose dolphins, common dolphins, Risso's dolphins, killer whales, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of the deepwater LNG port project. Because these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on one or two encounters with typical group size. Therefore, NMFS estimates that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals could be exposed to continuous noise at or above 120 dB re 1 μPa rms incidental to operations (
Because Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur, NMFS has determined that only small numbers of the marine mammal species or stocks in the area would be potentially affected by the Neptune LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures required in the regulations.
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, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Neptune's port operation and maintenance and repair activities, and none are authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (
While some of the species occur in the project area year-round, some species only occur in the area during certain seasons. For example, sei whales are only anticipated in the area during the spring. Therefore, if shipments and/or maintenance/repair activities occur in other seasons, the likelihood of sei whales being affected is quite low. Additionally, any repairs that can be scheduled in advance will be scheduled to avoid the peak time that North Atlantic right whales occur in the area, which usually is during the early spring. North Atlantic right, humpback, and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Of the 14 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, fin, and sei whales. These four species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. The affected humpback and North Atlantic right whale populations have been increasing in recent years. However, there is insufficient data to determine population trends for the other depleted species in the project area. There are several well known North Atlantic right
The population estimates for the species that may be taken by harassment from the most recent U.S. Atlantic SARs were provided in Table 2 in this document. From the most conservative estimates of both marine mammal densities in the project area and the size of the 120-dB ZOI, the maximum calculated number of individual marine mammals for each species that could potentially be harassed annually is small relative to the overall population sizes (9.2 percent for humpback whales, 6.6-7 percent for North Atlantic right whales, and no more than 3.1 percent of any other species).
As stated previously, NMFS' practice has been to apply the 120 dB re 1 µPa (rms) received level threshold for underwater continuous sound levels to determine whether take by Level B harassment occurs. However, not all animals react to sounds at this low level, and many will not show strong reactions (and in some cases any reaction) until sounds are much stronger. Southall
The take estimates presented in this document are likely an overestimate of the actual number of animals that may be taken by Level B harassment in any given year. First, NMFS used the highest value SPUE for the season with the highest abundance of each species to determine relative abundance from the NCCOS (2006) report. However, the SPUE quantiles used in that report had very large ranges. For example, for humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8 but used 11.8 as the SPUE to determine density. In most cases, the highest value SPUE in any given quantile is many magnitudes larger than the minimum value in that particular quantile. Second, the estimates assume that repairs will be required every year, which may not be the case. For the reasons discussed in this section of the document (and elsewhere), the take estimates presented by NMFS are likely an overestimate.
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 operation, including repair and maintenance activities, of the Neptune Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Neptune's activities will have a negligible impact on the affected species or stocks.
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.
On January 12, 2007, NMFS concluded consultation with MARAD and USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility and issued a Biological Opinion. The finding of that consultation was that the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green, or leatherback sea turtles.
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting reinitiation of the ESA section 7 consultation. MARAD and USCG determined that certain routine planned operations and maintenance activities, inspections, surveys, and unplanned repair work on the Neptune Deepwater Port pipelines and flowlines, as well as any other Neptune Deepwater Port component (including buoys, risers/umbilicals, mooring systems, and sub-sea manifolds), may constitute a modification not previously considered in the 2007 Biological Opinion. Construction of the Port facility has been completed, and, therefore, is no longer part of the proposed action. On July 12, 2010, NMFS' Northeast Regional Office issued a Biological Opinion, which concludes that the operation of the Neptune LNG deepwater port, including required maintenance and repair work, is likely to adversely affect, but is not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, and sei whales. NMFS reached this conclusion after reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area. Although MARAD served as the lead Federal agency for the section 7 consultation, the Biological Opinion also considered the effects of permits issued by the Army Corps of Engineers, the Federal Energy Regulatory Commission, and the Environmental Protection Agency for various portions of the maintenance and operation of the Port and associated pipeline, as well as NMFS' issuance of authorizations to Neptune under the MMPA for the take of marine mammals incidental to Port operations and maintenance/repairs. NMFS has determined that issuance of these regulations and subsequent LOAs will not have any impacts beyond those analyzed in the 2010 Biological Opinion. NMFS' Northeast Regional Office will issue an Incidental Take Statement upon issuance of the LOA.
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Neptune LNG Deepwater Port (see
NMFS was a cooperating agency in the preparation of the Draft and Final EISs based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. On June 3, 2008, NMFS adopted the USCG and MARAD FEIS and issued a separate Record of Decision for issuance of authorizations pursuant to sections 101(a)(5)(A) and (D) of the MMPA for the construction and operation of the Neptune LNG Port facility. NMFS reviewed the FEIS to ensure that the analysis contained in that document accurately describes and analyzes the impacts to the human environment of NMFS' action of issuing an MMPA authorization for the operation and repair and maintenance of the Neptune Port. NMFS has determined that the FEIS sufficiently covers the activities considered in this final rule.
The Office of Management and Budget (OMB) has determined that this final rule is not significant for purposes of Executive Order 12866.
At the proposed rule stage, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Neptune LNG LLC is the only entity that would be subject to the requirements in these regulations. Neptune is one of several companies at GDF SUEZ Energy North America (GSENA), which itself is a business division of GDF SUEZ Energy Europe & International. GSENA has more than 2,000 employees in North America alone. Therefore, it is not a small governmental jurisdiction, small organization, or small business, as defined by the Regulatory Flexibility Act. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This final rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 217 is amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to Neptune LNG LLC (Neptune) and those persons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occur incidental to commissioning and operation, including maintenance and repair activities, at the Neptune Deepwater Port (Port).
(b) The taking of marine mammals by Neptune may be authorized in a Letter of Authorization only if it occurs at the Neptune Deepwater Port within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575, which are located at approximately 42°28′09″ N. lat and 70°36′22″ W. long.
Regulations in this subpart are effective from July 11, 2011, through August 10, 2016.
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 217.177 of this chapter, the Holder of the Letter of Authorization (hereinafter “Neptune”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.170(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities identified in § 217.170(a) is limited to the following species and is limited to Level B Harassment:
(1) Mysticetes:
(i) North Atlantic right whale (
(ii) Fin whale (
(iii) Humpback whale (
(iv) Minke whale (
(v) Sei whale (
(2) Odontocetes:
(i) Long-finned pilot whale (
(ii) Atlantic white-sided dolphin (
(iii) Bottlenose dolphin (
(iv) Common dolphin (
(v) Risso's dolphin (
(vi) Killer whale (
(vii) Harbor porpoise (
(3) Pinnipeds:
(i) Harbor seal (
(ii) Gray seal (
Notwithstanding takings contemplated in § 217.170 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.177 of this chapter, no person in connection with the activities described in § 217.170 may:
(a) Take any marine mammal not specified in § 217.172(b);
(b) Take any marine mammal specified in § 217.172(b) other than by incidental, unintentional Level B Harassment;
(c) Take a marine mammal specified in § 217.172(b) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.177 of this chapter.
(a) When conducting the activities identified in § 217.170(a), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 217.177 must be implemented. These mitigation measures include but are not limited to:
(1) Major Repairs (May 1-November 30):
(i) During repairs, if a marine mammal is detected within 0.6 mi (1 km) of the repair vessel (or acoustically), the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area.
(ii) Repair vessels shall cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels shall cease any movement in the construction area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, shall also be required to maintain these separation distances.
(iii) Repair vessels shall cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa.
(iv) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species) or if the marine mammal has not been re-sighted in the established zones for 30 minutes.
(v) While under way, all repair vessels shall remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals, unless constrained by human safety concerns or navigational constraints.
(vi) All repair vessels 300 gross tons or greater must maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the repair site must contact the Mandatory Ship Reporting System, the U.S. Coast Guard (USCG), or the protected species observers (PSOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA.
(vii) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB.
(2) Major Repairs (December 1-April 30): If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, then Neptune shall implement the following mitigation measures in addition to those listed in § 217.174(a)(1)(i) through (vii):
(i) If on-board PSOs do not have at least 0.6-mi (1-km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and divers brought on board until visibility is adequate to see a 0.6-mi (1-km) range. At the time of shutdown, the use of thrusters must be minimized to the lowest level needed to maintain personnel safety. If there are potential safety problems due to the shutdown, the captain must decide what operations can safely be shut down and shall document such activities in the data log.
(ii) Prior to leaving the dock to begin transit, the barge must contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again seek clearance to leave from the PSOs on board. PSOs will assess whale activity and visual observation ability at the time of the transit request to clear the barge for release and will grant clearance if no North Atlantic right whales have been sighted in the last 30 minutes in the visual observation area.
(iii) Neptune or its contractor shall provide a half-day training course to designated crew members assigned to the transit barges and other support vessels who will have responsibilities for watching for marine mammals. This course shall cover topics including, but not limited to, descriptions of the marine mammals found in the area, mitigation and monitoring requirements contained in the Letter of Authorization, sighting log requirements, and procedures for reporting injured or dead marine mammals. These designated crew members shall be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew members shall sign into a bridge log book upon start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 3,281 ft (1,000 m) of the vessel shall result in a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750 m) shall result in idle speed and/or ceasing all movement.
(iv) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots (9.3 km/hr).
(v) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels shall operate at 5 knots (9.3 km/hr) or less at all times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair vessels and shuttle regasification vessels (SRVs) shall transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS' regulations at 50 CFR 224.105 that implement speed
(i) CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42° 12′ N. latitude;
(ii) Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42°30′ N. 69°45′ W.; thence to 42°30′ N. 70°30′ W.; thence to 42°12′ N. 70°30′ W.; thence to 42°12′ N. 70°12′ W.; thence to 42°04′ 56.5″ N. 70°12′ W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′ N.; thence due east to 41°41′ N. 69°45′ W.; thence back to starting point; and
(iii) Great South Channel (GSC) SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:
(4) Additional Mitigation Measures:
(i) When approaching and departing from the Neptune Port, SRVs shall use the Boston Traffic Separation Scheme (TSS) starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a “heightened awareness” mode of operation.
(ii) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Marine Mammal Detection, Monitoring, and Response Plan (the Plan), require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune.
(iii) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts, and it is enforceable by the USCG in accordance with the 33 CFR 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune.
(iv) Neptune shall ensure that other vessels providing support to Port operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales.
(v) PSOs shall direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel.
(vi) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.
(vii) Neptune must immediately suspend any repair and maintenance or operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the Port facility activities. Upon finding a dead or injured marine mammal, Neptune must contact NMFS, the Northeast Stranding and Disentanglement Program, and the USCG. NMFS will review the documentation submitted by the PSO and attempt to attribute a cause of death. Activities shall not resume until review and approval has been given by NMFS.
(5) Additional mitigation measures as contained in a Letter of Authorization issued under §§ 216.106 and 217.177 of this chapter.
(b) [Reserved]
(a) Visual Monitoring Program:
(1) Neptune shall employ PSOs during maintenance- and repair-related activities on each vessel that has a dynamic positioning system. Two (2) PSOs shall be on-duty at all times. All PSOs must receive NMFS-approved PSO training and be approved in advance by NMFS after a review of their qualifications.
(2) Qualifications for these PSOs shall include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
(3) The PSOs (one primary and one secondary) are responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist, and the secondary PSO shall serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals.
(4) The PSOs shall monitor the maintenance/repair area using the naked eye, hand-held binoculars, and/or power binoculars.
(5) The PSOs shall scan the ocean surface during maintenance- and repair-related activities and record all sightings in marine mammal field sighting logs. Observations of marine mammals shall be identified to the species or the lowest taxonomic level possible, and their relative position in relation to the vessel shall be recorded.
(6) While a SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.
(7) In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters, an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered in “heightened awareness” status.
(8) At the conclusion of regasification activities, when the SRV is prepared to depart from the Port, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master.
(b) Passive Acoustic Monitoring (PAM) Program:
(1) Neptune shall work with NMFS, Stellwagen Bank National Marine Sanctuary (SBNMS), and other scientists
(2) Neptune shall work with NMFS, SBNMS, and other scientists to monitor the archival array of acoustic recording units (ARUs), or “pop-ups,” around the Port that meets the criteria specified in the program developed by NOAA in consultation with the USCG under the NMSA. The ARUs shall remain in place for 5 years following initiation of operations to monitor the actual acoustic output of port operations and alert NOAA to any unanticipated adverse effects of port operations, such as large-scale abandonment of the area or greater acoustic impacts than predicted through modeling.
(3) Passive acoustic devices shall be actively monitored for detections by a NMFS-approved bioacoustic technician.
(4) Repair Activity PAM Measures: PAM, in addition to that required in this section of these regulations, shall be required, on a case-by-case basis, during both planned and emergency repair activities in order to better detect right whales in the area of repair work and to collect additional data on the noise levels produced during repair and maintenance activities.
(i) Neptune shall work with NOAA (NMFS and SBNMS) to evaluate when to install and maintain an array of real-time passive acoustic detection buoys to provide early warnings for potential occurrence of right whales in the vicinity of the repair area. The number of passive acoustic detection buoys installed around the activity site, if deemed necessary, shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.
(ii) Neptune shall provide NMFS with empirically measured source level data for all sources of noise associated with Port maintenance and repair activities. Measurements shall be carefully planned and coordinated with noise-producing activities and shall be collected from the passive detection network.
(5) SRV Regasification PAM Measures: Source levels associated with dynamic positioning of SRVs at the buoys shall be estimated using empirical measurements collected from a platform positioned as close as practicable to thrusters while in use.
(c) Neptune must implement the following reporting requirements:
(1) Because the Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from the Port must report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA must report their activities to WHALESNORTH. Any North Atlantic right whale sightings must be reported to the NMFS Sighting Advisory System.
(2)
(ii) During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly report must include data collected for each distinct marine mammal species observed in the project area during the period of the repair activity. The weekly reports shall include the following:
(A) The location, time, and nature of the pipeline lateral activities;
(B) Whether the dynamic position (DP) system was operated and, if so, the number of thrusters used and the time and duration of DP operation;
(C) Marine mammals observed in the area (number, species, age group, and initial behavior);
(D) The distance of observed marine mammals from the repair activities;
(E) Observed marine mammal behaviors during the sighting;
(F) Whether any mitigation measures were implemented;
(G) Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover,
(H) Condition of the marine mammal observation (visibility and glare); and
(I) Details of passive acoustic detections and any action taken in response to those detections.
(iii) For all minor repair work, Neptune must notify NOAA regarding when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work, as soon as practicable after it is determined that repair work must be conducted. Vessel crews shall record/document any marine mammal sightings during the work period.
(iv) At the conclusion of all minor repair work, Neptune shall provide NOAA with a report describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work.
(3)
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The name and type of vessel involved;
(iii) The vessel's speed during the incident;
(iv) Description of the incident;
(v) Water depth;
(vi) Environmental conditions (
(vii) Species identification or description of the animal;
(viii) The fate of the animal; and
(ix) Photographs or video footage of the animal (if equipment is available).
(4)
(ii) The annual report shall include data collected for each distinct marine mammal species observed in the project area in the Massachusetts Bay during the period of Port operations and repair/maintenance activities. The annual report shall also include a description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance activities. Additional information that shall be recorded by Neptune or its contractor during operations and repair/maintenance activities and contained in the reports include: results of empirical
(5)
(ii) Neptune shall submit a revised final comprehensive technical report, including all monitoring results during the entire period of the LOAs, 90 days after the end of the period of effectiveness of the regulations to NMFS, Office of Protected Resources, and NMFS, Northeast Regional Office (specific contact information to be provided in Letter of Authorization).
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Citizen (as defined by § 216.103) conducting the activity identified in § 217.170(a) (
(b) [Reserved]
(a) A Letter of Authorization, unless suspended or revoked, shall be valid for a period of time not to exceed the period of validity of this subpart.
(b) The Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s).
(a) A Letter of Authorization issued under § 216.106 and § 217.177 of this chapter for the activity identified in § 217.170(a) shall be renewed upon request by the applicant or determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations, provided that:
(1) NMFS is notified that the activity described in the application submitted under § 217.176 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2) NMFS recieves the monitoring reports required under § 217.175(c)(1)-(4); and
(3) NMFS determines that the mitigation, monitoring and reporting measures required under §§ 217.174 and 217.175 and the Letter of Authorization issued under §§ 216.106 and 217.177 of this chapter were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.
(b) If either a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 217.178 or a determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request. Review and comment on renewals of Letters of Authorization are restricted to:
(1) New cited information and data indicating that the determinations made in this document are in need of reconsideration, and
(2) Proposed substantive changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(d) Adaptive Management—NMFS may modify or augment the existing mitigation or monitoring measures (after consulting with Neptune regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of mitigation and monitoring set forth in the preamble of these regulations. Below are some of the possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures:
(1) Results from Neptune's monitoring from the previous year;
(2) Results from general marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued by NMFS, pursuant to §§ 216.106 and 217.177 of this chapter and subject to the provisions of this subpart shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 217.178, without modification (except for the period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.172(b), a Letter of Authorization issued pursuant to §§ 216.106 and 217.177 of this chapter may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the
Office of the Secretary, Labor.
Request for Information.
In response to the President's Executive Order 13563 on improving regulation and regulatory review, the Department of Labor (DOL or the Department) prepared a preliminary plan to review its existing significant regulations. The purpose of this notice is to invite public comment on the Department's preliminary plan.
Comments must be received on or before 11:59 p.m. (EDST) on July 1, 2011.
You may submit comments through the Department's Regulations Portal at
e. christi cunningham, Associate Assistant Secretary for Regulatory Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-2312, Washington, DC 20210,
On January 18, 2011, President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review.” The Order explains the Administration's goal of creating a regulatory system that protects “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation” while using “the best, most innovative, and least burdensome tools to achieve regulatory ends.” The Executive Order requires agencies to develop and submit a preliminary plan within 120 days from the January 18 issuance date that explains how each agency will review existing significant regulations to identify whether any regulations may be made more effective or less burdensome.
On May 26, 2011, the Department published its preliminary plan (
To facilitate receipt of public comments, the Department has established an Internet portal specifically designed to capture your input and suggestions,
• Rules currently under consideration for retrospective analysis.
• Development of a strong, ongoing culture of retrospective analysis and strengthening internal review expertise.
• Factors and processes that will be used in setting priorities.
• Plans for retrospective analysis, revisiting and revising rules and coordinating with other Federal agencies.
• Metrics used to evaluate regulations, ensuring availability of data and incorporation of experimental design.
When providing input, the Department requests that commenters provide as much detail as possible and provide empirical evidence and data to support responses, whenever possible. The Department will consider public comments as it finalizes its plan for Retrospective Analysis of Existing Rules. The Department is issuing this request solely to seek useful information as it develops its review plan. While responses to this request do not bind the Department to any further actions related to the response, all submissions will be made available to the public on
E.O. 13653, 76 FR 3821, Jan. 21, 2011; E.O. 12866, 58 FR 51735, Oct. 4, 1993.
Privacy Office, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is giving concurrent notice of an updated system of records pursuant to the Privacy Act of 1974 for the Department of Homeland Security United States Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection—001 Alien File, Index, and National File Tracking system of records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. The legacy final rule (28 CFR 16.99) exempting the Immigration and Naturalization Service A-File and Central Index System, JUSTICE/INS-
Comments must be received on or before July 13, 2011.
You may submit comments, identified by docket number DHS-2011-0047, by one of the following methods:
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For general questions please contact Donald K. Hawkins, Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Ave., NW., Washington, DC 20529. For privacy issues please contact Mary Ellen Callahan, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security (DHS) implements U.S. immigration law and policy through the U.S. Citizenship and Immigration Service's (USCIS) processing and adjudication of applications and petitions submitted for citizenship, asylum, and other immigration benefits. USCIS also supports national security by preventing individuals from fraudulently obtaining immigration benefits and by denying applications from individuals who pose national security or public safety threats. U.S. immigration policy and law is also implemented through U.S. Immigration and Customs Enforcement's (ICE) law enforcement activities and U.S. Customs and Border Protection's (CBP) inspection and border protection processes.
The Alien File (A-File), Index, and National File Tracking System of Records is the official record system that contains information regarding transactions involving an individual as he/she passes through the U.S. immigration and inspection process. The DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records contains personally identifiable information (PII) such as the individual's name, Alien Registration Number (A-Number), receipt number, date and place of birth, date and port of entry, as well as the location of each official A-File. It may also contain other personal identifiers such as an individual's social security number. Some records contained in the DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records are derived from separate systems of record, in which case the system of records notice pertaining to the originating system would govern the treatment of those records. Previously, the legacy agency Immigration and Naturalization Services (INS) collected and maintained information concerning all of these immigration and inspection interactions. Since the formation of DHS, however, immigration responsibilities have been divided among USCIS, ICE, and CBP. While USCIS is the custodian of the A-File, all three components create and use A-Files.
A notice detailing this system of records was last published in the
DHS is updating the DHS/USCIS-001 Alien File and Central Index System of Records to be renamed DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records to include the following substantive changes: (1) The addition of thirteen routine uses and updates to other routine uses to allow DHS to share information from the system; (2) an update to the classification level of the system and to provide notice that the system may contain classified records; and (3) a proposed exemption from certain provisions of the Privacy Act for records that are classified.
DHS is renaming this system in order to provide a better description of the types of records that are maintained in this system of records. These records may be maintained in paper or electronic format, but the uses and protections outlined in the notice do not change because of the format or the specific IT system in which they are maintained. DHS has provided more explicit notice on the specific IT systems where these types of records may exist under “Location.”
Routine Use changes (the letter in parentheses corresponds to the Routine Use): DHS has added thirteen new routine uses and modified others in order to allow DHS to release system information:
(A) Updated: To include DHS as an additional party for litigation in the release of information to the Department of Justice (DOJ);
(D) New: To an agency, organization, or individuals for the purpose of performing audits or oversight as authorized by law;
(F) Updated: To include interns and students working on assignments for DHS;
(I) New: To courts for immigration, civil, or criminal proceedings;
(K) New: To DOJ or other Federal agencies when conducting litigation to assist in development of the agency's legal and/or policy position;
(L) Updated: To include sharing with international organizations about an alien or an enforcement operation with transnational implications;
(P) New: To a government organization in regards to hiring or retention of an individual where failure to disclose information on an individual is likely to create a security risk;
(Q) Updated: Rewritten to provide better clarification on when information is released to current or prospective employers;
(T) New: To Congress during the private immigration relief legislation process;
(U) Updated: To government agencies to assist in the collection of debts;
(V) Updated: To third parties posting immigration bonds;
(BB) New: To third parties when an individual will be released from DHS custody to assist with arranging housing or medical care;
(CC) New: To domestic government agencies when an individual will be released from DHS custody and there are concerns related to health and safety;
(DD) New: To foreign governments to coordinate removal of individuals;
(EE) New: To law enforcement agencies for de-conflicting investigations and other coordination of law enforcement activities;
(FF) New: To custodial agencies to place an immigration detainer on an
(GG) New: To government agencies to confirm the location, custodial status, removal or voluntary departure of an alien in order to facilitate the custody, care and/or legal rights of the individual's minor children;
(HH) New: To government agencies to assist in making determinations of redress;
(II) New: To share information from the system on a case-by-case basis with the news media or public.
The latter sharing, to the news media or public, would be done only with the approval of the DHS Chief Privacy Officer, who will weigh the public interest in receiving the information against the privacy interests of the individual to whom the information pertains, when the disclosure is necessary to preserve confidence in the integrity of DHS or demonstrate the accountability of DHS personnel.
Pursuant to Public Law 107-296, Homeland Security Act of 2002, Section 804 Savings Provisions, and by reference 28 CFR Appendix C to part 16, subpart E, pertaining to the INS A-File and CIS, JUSTICE/INS-001A (66 FR 46812) system of records notice, the records and information in this system are exempt from 5 U.S.C. 552a (c)(3) and (4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), and (g) of the Privacy Act. These exemptions apply only to the extent that records in the system are subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
Consistent with DHS's statutory information sharing mission, information stored in the DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records may be shared with other DHS components, as well as appropriate Federal, state, local, Tribal, foreign, or international government agencies. This sharing will take place only after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the purposes of this system of records and the routine uses set forth in this system of records notice.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records. Some information in DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.
A System of Records Notice for DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for Part 5 continues to read as follows:
6 U.S.C. 101
2. Add at the end of Appendix C to part 5, the following new paragraph “55”:
55. DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records consists of electronic and paper records and will be used by USCIS, ICE, and CBP. DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to: the enforcement of civil and criminal laws; investigations, inquiries, and proceedings thereunder; and national security and intelligence activities. DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other Federal, state, local, Tribal, territorial, foreign, or international government agencies. The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to limitations set forth in 5 U.S.C. 552a(c)(3) and (c)(4): (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to limitations set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of Federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses, DHS employees' identities, or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(i) From subsection (e)(12) (Computer Matching) if the agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the
(j) From subsection (g)(1) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians) the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.
Agricultural Marketing Service, USDA.
Notice of Availability With Request For Comments.
The National Organic Program (NOP) is announcing the availability of four draft guidance documents intended for use by accredited certifying agents and certified operations. The draft guidance documents are entitled as follows: “The Use of Kelp in Organic Livestock Feed (NOP 5027)”; “Responding to Results from Pesticide Residue Testing (NOP 5028)”; “Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production (NOP 5029)”; and “Evaluating Allowed Ingredients and Sources of Vitamins and Minerals For Organic Livestock Feed, Feed Supplements, and Feed Additives (NOP 5030)”.
These draft guidance documents are intended to inform the public of NOP's current thinking on these topics. A notice of availability of final guidance on these topics will be issued upon their final approval. Once finalized, these guidance documents will be available from the NOP through “The Program Handbook: Guidance and Instructions for Accredited Certifying Agents (ACAs) and Certified Operations.
To ensure that NOP considers your comment on this draft guidance before it begins work on the final
Submit written requests for hard copies of these draft guidance documents to Toni Strother, Agricultural Marketing Specialist, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave., SW., Room 2646 So., Ag Stop 0268, Washington, DC 20250-0268. See the
Interested persons may comment on these four draft guidance documents using the following procedures:
Written comments responding to this request should be identified with the document number AMS-NOP-11-0002; NOP-11-02. You should clearly indicate your position and the reasons for your position. You should clearly indicate which guidance document you are commenting on, especially if you choose to comment on more than one draft guidance document. If you are suggesting changes to a draft guidance document, you should include recommended language changes, as appropriate, along with any relevant supporting documentation.
USDA intends to make available all comments, including names and addresses when provided, regardless of submission procedure used, on
Melissa R. Bailey, PhD, Director, Standards Division, National Organic Program (NOP), USDA-AMS-NOP, 1400 Independence Ave., SW., Room 2646-So., Ag Stop 0268, Washington, DC 20250-0268,
The NOP selected the topics for the four draft guidance documents announced through this notice in response to recommendations issued by the National Organic Standards Board (NOSB) and the need to improve consistency in how certifying agents and certified operations are implementing the NOP regulations at 7 CFR part 205. The NOP developed “Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production (NOP 5029)”, and “Evaluating Allowed Ingredients and Sources of Vitamins and Minerals For Organic Livestock Feed, Feed Supplements, and Feed Additives (NOP 5030)” in response to outstanding NOSB recommendations from May 2002, February 2005, and November 2008. The NOP developed “The Use of Kelp in Organic Livestock Feed (NOP 5027)” in response to requests by certifying agents and certified operations for clarifications on this issue. The NOP developed “Responding to Results from Pesticide Residue Testing (NOP 5028)” to describe the reporting scheme and actions that certifying agents should be instituting to meet the requirements at § 205.670 of the NOP regulations.
These draft guidance documents are being issued in accordance with the Office of Management and Budget (OMB) Bulletin on Agency Good Guidance Practices (GGPs) (January 25, 2007, 72 FR 3432-3440).
The purpose of GGPs is to ensure that program guidance documents are developed with adequate public participation, are readily available to the public, and are not applied as binding requirements. The draft guidance, when finalized, will represent the NOP's current thinking on these topics. It does not create or confer any rights for, or on, any person and does not operate to bind the NOP or the public. Guidance documents are intended to provide a uniform method for operations to comply that can reduce the burden of developing their own methods and simplify audits and inspections. Alternative approaches that can demonstrate compliance with the Organic Foods Production Act (OFPA), as amended (7 U.S.C. 6501-6522), and its implementing regulations are also acceptable. As with any alternative compliance approach, the NOP strongly encourages industry to discuss alternative approaches with the NOP before implementing them to avoid unnecessary or wasteful expenditures of resources and to ensure the proposed alternative approach complies with the Act and its implementing regulations.
Persons with access to Internet may obtain the draft guidance at either NOP's Web site at
7 U.S.C. 6501-6522.
Agricultural Marketing Service, USDA.
Proposed rule.
Four amendments to Marketing Agreement and Order No. 983, which regulates the handling of pistachios grown in California, Arizona, and New Mexico, were proposed by the Administrative Committee for Pistachios (Committee), which is responsible for local administration of the order. The proposed amendments would provide authority to establish aflatoxin and quality regulations for pistachios shipped to export markets, including authority to establish different regulations for different markets. The order currently provides authority for aflatoxin and quality regulations only for pistachios shipped to domestic markets. These proposed amendments are intended to provide authority to ensure uniform and consistent aflatoxin and quality regulations in the domestic and various export markets.
Comments must be received by July 13, 2011.
Written comments should be submitted to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington,
To the extent practicable, all documents filed with the Docket Clerk should also be submitted electronically to Martin Engeler at the email address noted for him in the
Martin Engeler, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; 2202 Monterey Street, Fresno, California, 93721; Telephone: (559)487-5110, Fax: (559) 487-5906, or Kathleen M. Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; 1400 Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
Small businesses may request information on complying with this regulation by contacting Laurel May, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This proposal is issued under Marketing Agreement and Order No. 983, both as amended (7 CFR part 983), regulating the handling of pistachios produced in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900) authorize amendment of the order through this informal rulemaking action. A producer referendum may be held in the future to determine support for the proposed order amendments, if deemed appropriate.
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) made changes to section 18c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August, 21, 2008). The changes to section 18c(17) of the Act and additional supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend federal fruit, vegetable, and nut marketing agreements and orders if certain criteria are met.
AMS has considered the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and other relevant matters, and has determined that amending the order as proposed by the committee could appropriately be accomplished through informal rulemaking. AMS will analyze any comments received on the amendments proposed in this rule, and if warranted, will conduct a producer referendum to determine grower support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments favored by producers participating in the referendum.
The proposed amendments were unanimously recommended by the Committee following deliberations at a public meeting on July 9, 2010. The Committee's proposed amendments would: (1) Provide authority to establish aflatoxin sampling, analysis, and inspection requirements for shipments of pistachios to export markets, including authority to establish different regulations for different markets. (2) Provide authority to establish quality and inspection requirements for shipments of pistachios to export markets, including authority to establish different regulations for different markets. (3) Change a related section of the order concerning substandard pistachios to conform to the proposed addition of export authority. (4) Correct an erroneous cross-reference to another section of the order.
Section 983.50 of the order provides authority to establish aflatoxin sampling, analysis, and inspection requirements applicable to pistachios shipped for domestic human consumption. Section 983.150 of the order's administrative rules and regulations establish such requirements. These regulations prohibit the shipment of pistachios for domestic human consumption unless they have been sampled and tested according to specific procedures and protocols, and certified that they do not contain traces of aflatoxin exceeding a tolerance level of 15 parts per billion (ppb). The aflatoxin regulations under the order are intended to help assure consumers of a good quality product and to reduce the risk of potential aflatoxin contamination. While authority exists to establish aflatoxin regulations for domestic shipments of pistachios, no such authority exists under the order for export shipments. This proposed amendment would add authority to establish aflatoxin regulations for shipments of pistachios to export markets.
When the order was promulgated in 2004, a State of California marketing agreement was in effect that provided aflatoxin testing and certification for export shipments to designated markets. Under that program, handlers tested and certified export shipments according to the methods and protocols acceptable to the export destination. Thus, the authority to regulate export shipments was not included in the order to avoid duplication. The State program served the needs of the industry for several years, but was terminated in 2010. Although handlers continue to test and certify product prior to shipping into export markets, there is currently no program in place to establish uniform and consistent procedures.
The export market is becoming increasingly important to the U.S. pistachio industry to market its
In view of the new plantings of pistachios as represented by the non-bearing acreage data, it is readily apparent that the production of U.S. pistachios will increase significantly in coming years. Successful marketing of the crop in the future will be dependent not only on sustaining current markets, but increasing the global demand to absorb the increased production. In order to accomplish this, it is important to reduce the risk of an aflatoxin incident involving U.S. pistachios.
In the mid-1990's, heightened consumer concern about aflatoxin occurred in Europe which resulted in a significant drop in pistachio consumption in those markets. Issues involving other commodities have also occurred in recent years, with adverse impacts. The pistachio industry thus believes it would be prudent to avail itself of an additional tool that could be used to reduce the risk of potential aflatoxin incidence in U.S. pistachios and the associated negative impacts.
Although pistachios destined for export markets are currently being tested and certified based on the requirements in those markets and customer's needs, there is currently no program in place with government oversight to ensure all handlers are following specific established protocols and procedures. Adding authority to the order to allow issuance of rules and regulations for aflatoxin testing and certification for export shipments would provide a mechanism to establish uniform and consistent aflatoxin sampling, analysis, and inspection requirements for shipments of domestically produced pistachios to export markets. A program with consistent and uniform procedures, with Federal oversight, would help instill confidence with foreign customers and government officials that the U.S. pistachio industry is committed to providing a good quality product to its markets that match or exceed the standards of the importing country.
The intent of the proposed amendments authorizing aflatoxin regulation for exports is to provide an additional tool under the order to aid in successful marketing of future crops.
The various export markets to which pistachios are shipped often have different requirements, such as allowable aflatoxin tolerance levels. Thus, the Committee also recommended adding authority to the order to establish different aflatoxin regulations for different markets. The proposed amendment would therefore authorize different regulations for different markets.
If the order is amended to include authority to establish aflatoxin regulations for shipments to export markets, specific regulations would need to be added to the order's rules and regulations through the informal rulemaking process. If the industry chooses to pursue such regulations, the Committee would meet to consider and analyze the available information in developing any recommendation to AMS. Any recommendation of the Committee concerning potential aflatoxin regulations would require a unanimous vote of 12 Committee members or alternate members acting in their stead according to the voting requirements in § 983.43 of the order.
For the reasons stated above, it is proposed that § 983.50, Aflatoxin regulations, be amended to authorize the Committee, with approval of the Secretary, to establish aflatoxin sampling, analysis, and inspection requirements for pistachios to be shipped for human consumption in export markets. It is also proposed that § 983.50 of the order be amended to authorize the Committee, with approval of the Secretary, to establish different aflatoxin requirements for different markets.
Section 983.51 of the order provides authority for the Committee, with approval of the Secretary, to establish quality and inspection requirements for pistachios shipped for domestic human consumption. There are currently no such requirements in effect under the order.
When the order was promulgated in 2004, specific requirements pertaining to quality levels were contained in the provisions of the order. These provisions were in effect from 2004 through 2007. In December 2007, the requirements were suspended because they were no longer meeting the industry's needs. In November 2009, the order was amended and the suspended quality requirements were removed from the order and replaced with broad authority for quality regulation. At that time, there was no desire by the industry to reinstate the specific quality regulations previously in effect or any intent to recommend any form of quality regulation. However, the industry desired to retain authority to implement some form of quality regulation in the future if circumstances warrant. Informal rulemaking would be required to reinstate quality regulations.
Applying similar logic, the Committee recommended at its July 2010 meeting to amend the broad quality authority under the order to include the authority to establish requirements for export shipments, in addition to domestic shipments. No quality regulations are currently being contemplated by the industry; however, the Committee believes it would be prudent to expand the current authority for quality regulations to include export shipments. Adding broad authority for quality regulations for exports would provide flexibility in the order by increasing the industry's ability to respond to quality issues related to exports, if they arise. Exports are becoming an increasingly important market for the industry and currently account for nearly two-thirds of domestically produced pistachios.
The Committee also recommended adding authority to the order to establish different quality requirements for different markets. Similar to the discussion under Proposal Number 1, different markets to which pistachios are shipped may have different quality requirements or concerns. The proposed amendment would therefore authorize different quality regulations for different markets. This would provide additional flexibility to the order to address different market needs.
If the order is amended to include authority to establish quality regulations for shipments to export markets, specific regulations would need to be added to the order's rules and regulations through the informal
For the reasons stated above, it is proposed that § 983.51, Quality regulations, be amended to authorize the Committee, with approval of the Secretary, to establish quality and inspection requirements for pistachios to be shipped for human consumption in export markets. It is also proposed that § 983.51 of the order be amended to authorize the Committee, with approval of the Secretary, to establish different quality requirements for different markets.
Section 983.57 of the order provides authority to establish reporting and disposition procedures for pistachios that do not meet aflatoxin or quality requirements (substandard product) to ensure they are not shipped for domestic human consumption. Since the order currently authorizes regulation of the domestic market only, § 983.57 does not reference the utilization of reporting and disposition procedures to ensure that substandard pistachios are not shipped to other markets besides the domestic market. Therefore, if Proposal Numbers 1 and 2 are adopted to include authority to regulate other markets, a conforming change should be made to § 983.57 to reference the utilization of reporting and disposition procedures to ensure substandard pistachios are not shipped to any market for which regulations exist.
It is therefore proposed that § 983.57, Substandard pistachios, be amended to authorize reporting and disposition procedures for substandard pistachios to ensure they are not shipped for human consumption in any market for which aflatoxin and/or quality requirements exist pursuant to § 983.50 and/or § 983.51.
Section 983.53 of the order pertains to aflatoxin testing of minimal quantities of pistachios and provides, in part, that lots of pistachios exceeding the maximum tolerance level for aflatoxin may be tested again after being reworked as specified in § 983.50. The reference to § 983.50 is incorrect. The correct section, which pertains to rework procedures, is § 983.52. This proposed amendment recommended by the Committee would correct the erroneous reference.
It is therefore proposed to amend § 983.53 by removing the reference to § 983.50 in paragraph (a) (2) and replacing it with the correct reference to § 983.52.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 850 producers and 29 handlers of pistachios in the production area encompassing California, Arizona, and New Mexico. The Small Business Administration (SBA) (13 CFR 121.201) defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $7,000,000.
Based on Committee data, it is estimated that over 70 percent of the handlers ship less than $7,000,000 worth of pistachios and would thus be considered small business under the SBA definition. It is also estimated that over 80 percent of the growers in the production area produce less than $750,000 worth of pistachios and would thus be considered small businesses under the SBA definition.
The amendments proposed by the Committee would provide authority to establish aflatoxin sampling, analysis, and inspection requirements for shipments of pistachios to export markets, including authority to establish different regulations for different markets; provide authority to establish quality and inspection requirements for shipments of pistachios to export markets, including authority to establish different regulations for different markets; change a related section of the order concerning substandard pistachios to conform to the proposed addition of export authority; and correct an erroneous cross-reference to another section of the order.
These proposed amendments were unanimously recommended at a public meeting of the Committee held on July 10, 2010. None of the proposed amendments would have an immediate impact on handlers or producers if they are approved because they would not establish any requirements or regulations on handlers. However, the proposed amendments that would add authority to the order to regulate exports could impact growers and handlers in the industry if the authority is implemented. Therefore, the potential costs that may be associated with future regulation of exports is discussed below. In the event implementing regulations are subsequently recommended by the Committee if the proposed amendments are approved, additional analysis of the potential costs and benefits would be conducted as part of the informal rulemaking process.
Under § 983.50 of the order and § 983.150 of the administrative rules and regulations, sampling, analysis, and inspection of pistachios for aflatoxin is required prior to shipment to domestic markets. Specific procedures and requirements for handlers to follow are prescribed. It is anticipated that any requirements recommended for export shipments would be similar to those in effect for domestic shipments. Thus, the associated costs would be similar.
The costs of complying with aflatoxin regulations can be broken into three basic elements: Sampling of the product, the market value of the product samples that are used in testing, and the cost of the aflatoxin analysis performed by laboratories. These costs can vary among handlers depending on their particular operations. In recognition of this, the Committee provided estimates of the various cost elements for purposes of this discussion.
The cost of drawing samples from lots is estimated to range from $50.00 to $75.00 per lot. The variation in this cost can be attributed to factors such as the type of inspection program utilized by handlers. For purposes of this evaluation a cost factor of $70.00 per lot is utilized. The cost of the product used in sampling and testing varies depending upon the market price for pistachios. For purposes of this evaluation a value of $3.00 per pound as estimated by the Committee is utilized. At $3.00 per pound and a 44-pound sample, the cost of product used in sampling is $132.00 per lot. Laboratory costs for analyzing aflatoxin content are estimated to be $100.00 per test; with two tests per lot, the cost is $200.00 per lot.
Pistachio lots tested for aflatoxin can vary in size, but for purposes of this evaluation, a lot size of 50,000 pounds is used as that is a reasonable representative size for a typical handler operation. Applying the above cost estimates to a lot size of 50,000 pounds results in the following cost estimates on a per pound basis:
1. Sampling cost: $0.0014 per pound ($70.00 per lot divided by 50,000 pounds).
2. Value of product used in sampling: $0.0026 per pound ($132.00 per lot divided by 50,000 pounds).
3. Analytical cost of aflatoxin testing: $0.0040 per pound ($200 per sample divided by 50,000 pounds).
This results in a total estimated per pound cost of $0.0060 ($0.0014 + $0.0026 + $0.0040), or 0.8 cents per pound.
When compared to the market price for pistachios, the direct costs associated with an aflatoxin program are proportionately small. Utilizing a market price of $3.00 per pound as used in the above cost estimates, the costs of aflatoxin sampling and testing represent 0.27 percent of the market price. Even if the market price for pistachios was $1.00 per pound, the aflatoxin sampling and testing costs would be well below one percent of the price.
Most handlers who shipped pistachios to export markets in the past were signatories to a state marketing agreement that required aflatoxin sampling and analysis. That program was terminated in 2010. Since then, most handlers reportedly conduct aflatoxin testing and certification on export shipments to satisfy the requirements of the various markets. Therefore, the costs discussed above are already being borne by handlers.
While difficult to quantify, one of the primary benefits of an aflatoxin program is the reduced risk of a potential food incident. For example, in the late 1990s, high aflatoxin levels were detected in pistachios in European markets. This led to a 60 percent decrease in pistachio imports in Europe, and it took several years for the market to return to more normal levels. The U.S was not dominant in the European market at that time, but in recent years, Europe has become an increasingly significant market for U.S. pistachios. Regardless of the location of the market, this example demonstrates the devastating effect a food quality or food safety issue can have on the marketing of a product.
Another benefit of an aflatoxin testing program is the resulting reduction in the incidence of rejected shipments at their destination. Many countries test product prior to allowing its importation. Product that does not meet the importing country's standards can be rejected and returned to the shipper. It is estimated that the cost of handling or returning a rejected lot is between $12,000 and $15,000 per lot. Product that has been tested prior to shipment based on the requirements of its market destination is less likely to be rejected and would not incur the associated costs.
Avoiding a disruption in the marketing of pistachios in export markets is important in maintaining the viability of the industry. Shipments of open inshell pistachios increased dramatically in recent years; from 95,761,666 pounds in the 2004-05 shipping season to 192,436,136 pounds in the 2009-10 season, according to Committee data. Exports represented approximately 63 percent of total U.S. pistachio shipments during the 2009-10 season. According to statistics reported by the Committee, total acreage increased from 117,773 acres in 2004 to 215,336 acres in 2010, representing an 83 percent increase. Much of this acreage is non-bearing and will come into production in the near future. These statistics demonstrate that domestic production of pistachios will continue to increase in the future, and export markets must be maintained to accommodate the increased supplies.
Expanding order authority to include establishing aflatoxin requirements applicable to export shipments will provide an additional tool to aid in the marketing of pistachios covered under the order. In the event the authority is implemented, the potential costs associated with a mandatory aflatoxin program for exports are expected to be more than offset by the potential benefits discussed above.
An analysis of the potential costs of adding authority to the order to establish quality regulations is not possible because no quality regulations are currently in effect under the order, and none are being contemplated. Quality regulations were in effect for domestic shipments from 2004 through 2007, but were suspended because they were no longer meeting the industry's needs. However, the order still contains broad authority for domestic quality regulations and the industry may desire to reinstate them if circumstances warrant. As a result of the increasing importance of the export market as demonstrated above, the Committee recommended adding authority to the order for quality regulation for export shipments in the event circumstances in the future warrant their implementation.
If such authority is added to the order, a unanimous action of the Committee would be required to recommend the establishment of any export quality regulations. In addition, informal rulemaking would be required for implementation, and an analysis of the potential costs and benefits would be conducted during that process.
The remaining proposed amendments are administrative in nature and would have no economic impact on growers or handlers. One of the proposed amendments would add conforming language to another section of the order if other amendments are approved, and another proposed amendment would correct an incorrect section reference in the order.
Alternatives to these proposals include making no changes at this time. However, the Committee believes it would be beneficial to have the means necessary to apply regulations to the export markets if circumstances warrant.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0215, “Pistachios Grown in California”. No changes in those requirements as a result of this proceeding are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.
As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
The Committee's meeting, at which these proposals were discussed, was widely publicized throughout the pistachio industry. All interested persons were invited to attend the meeting and encouraged to participate in Committee deliberations on all issues. Like all Committee meetings, the meeting was public, and all entities, both large and small, were encouraged to express their views on these proposals.
Finally, interested persons are invited to submit comments on the proposed amendments to the order, including
Following analysis of any comments received on the amendments proposed in this rule, AMS will determine whether to proceed, and if so, would conduct a producer referendum. Information about the referendum, including dates and voter eligibility requirements, would be published in a future issue of the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
1. The marketing agreement and order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;
2. The marketing agreement and order, as amended, and as hereby proposed to be further amended, regulate the handling of pistachios grown in California, Arizona, and New Mexico in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order;
3. The marketing agreement and order, as amended, and as hereby proposed to be further amended, are limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;
4. The marketing agreement and order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of pistachios produced or packed in the production area; and
5. All handling of pistachios produced or packed in the production area as defined in the marketing agreement and order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.
A 30-day comment period is provided to allow interested persons to respond to these proposals. Thirty days is deemed appropriate because the proposed changes have been widely publicized, and implementation of the changes, if adopted, would be desirable to benefit the industry as soon as possible. Any comments received on the amendments proposed in this rule will be analyzed, and if warranted, a producer referendum will be conducted to determine grower support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments favored by producers participating in the referendum.
Marketing agreements, Pistachios, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 983 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 983 continues to read as follows:
7 U.S.C. 601-674.
2. Revise § 983.50 to read as follows:
The committee shall establish, with the approval of the Secretary, such aflatoxin sampling, analysis, and inspection requirements applicable to pistachios to be shipped for domestic human consumption as will contribute to orderly marketing or be in the public interest. The committee may also establish, with the approval of the Secretary, such requirements for pistachios to be shipped for human consumption in export markets. No handler shall ship, for human consumption in domestic, or if applicable, export markets, pistachios that exceed an aflatoxin level established by the committee and approved by the Secretary. All shipments to markets for which requirements have been established must be covered by an aflatoxin inspection certificate. The committee may, with the approval of the Secretary, establish different sampling, analysis, and inspection requirements, and different aflatoxin level requirements, for different markets.
3. Revise § 983.51 to read as follows:
For any production year, the committee may establish, with the approval of the Secretary, such quality and inspection requirements applicable to pistachios shipped for human consumption in domestic or export markets as will contribute to orderly marketing or be in the public interest. In such production year, no handler shall ship pistachios for human consumption in domestic, or if applicable, export markets unless they meet the applicable requirements as evidenced by certification acceptable to the committee. The committee may, with the approval of the Secretary, establish different quality and inspection requirements for different markets.
4. Amend § 983.53 by removing the reference to “§ 983.50” and adding in its place “§ 983.52” in paragraph (a)(2).
5. Revise § 983.57 to read as follows:
The committee shall, with the approval of the Secretary, establish such reporting and disposition procedures as it deems necessary to ensure that pistachios which do not meet aflatoxin and quality requirements are not shipped for human consumption in those markets for which such requirements exist pursuant to § 983.50 and § 983.51.
National Institute of Food and Agriculture, USDA.
Notice of proposed rulemaking and request for comments.
The National Institute of Food and Agriculture (NIFA) is requesting comments on the proposed process to certify a qualifying college or university as a Hispanic-Serving Agricultural Colleges and Universities (HSACU) institution. NIFA is proposing to amend our regulations in the Code of Federal Regulations to chronicle the eligibility criteria colleges and universities must satisfy in order to be certified as HSACU institutions by the Secretary of Agriculture.
Written comments are invited from interested individuals and organizations. To be considered in the formulation of the guidelines, comments must be received on or before August 12, 2011.
You may submit comments, identified by Regulatory Information Number (RIN) 0524-AA39, by any of the following methods:
Matthew Lockhart, Senior Policy Specialist; National Institute of Food and Agriculture; U.S. Department of Agriculture; STOP 2299; 1400 Independence Avenue, SW., Washington, DC 20250-2299;
Section 7101 of the Food, Conservation, and Energy Act of 2008 (FCEA) (Pub. L. 110-246) amended section 1404 of the National Agricultural Research Teaching Policy Act of 1977, 7 U.S.C. 3103, to add a definition for a new group of cooperating educational institutions known as Hispanic-serving agricultural colleges and universities (HSACUs). Section 1404 defines HSACUs as colleges or universities that qualify as “Hispanic-serving institutions,” as that term is defined in Section 1101a of title 20, and that offer associate, bachelors, or other accredited degree programs in agriculture-related fields. An exception is made to the HSACU definition so that it does not include 1862 institutions as defined in Section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601).
Section 7129 of the FCEA authorizes the following five new programs for HSACUs: (1) HSACU Endowment Fund (formula-based); (2) HSACU Equity Grants Program (formula-based); (3) HSACU Institutional Capacity-Building Grants Program (competitive); (4) HSACU Extension Grants Program (competitive); and (5) HSACU Fundamental and Applied Research Grants Program (competitive). Funding for these programs is subject to the availability of appropriations. The FY 2011 President's Budget proposed $10,000,000 to initially fund the HSACU Endowment. If the proposed budget is enacted and an appropriation is made for the Endowment Fund, it will represent the first time funds have been appropriated for a HSACU program.
In addition, the FCEA amends section 406(b) of the Agricultural Research, Extension, and Education Reform Act of 1998, 7 U.S.C. 7626, to expand the eligibility for NIFA Integrated Research, Education, and Extension Competitive Grants Programs to include HSACUs.
NIFA was delegated authority to enter into agreements necessary to administer the HSACU Endowment Fund in 7 CFR 2.66(a)(144). NIFA, formerly the Cooperative State Research, Education, and Extension Service (CSREES), distributes federal funds to land grant colleges of agriculture to provide partial support for state-level research, education, and extension. NIFA's mission is to work with university partners to advance research, extension, and higher education in the food, agricultural, and related environmental and human sciences to benefit people, communities, and the nation.
For clarification, the rules for funds distributed to the HSACUs from the HSACU Endowment Fund shall be contained within 7 CFR part 3437. We will add and publish part 3437 shortly to provide specific administrative provisions for the HSACU Endowment Program (e.g., applicability of regulations, purpose, definitions, eligibility, use of funds, administrative duties, and other sections, as appropriate).
On Sunday October 12, 2008, NIFA held a listening session for Hispanic-Serving Institutions (HSI) representatives at the Hyatt Regency in Denver, Colorado to discuss the Food, Conservation, and Energy Act of 2008 (FCEA) (Pub. L. 110-246) that created a new set of programs dedicated to the HSI community. NIFA solicited and welcomed commentaries on any part of these new programs including ways to interpret and implement the definition of the new category of institutions established by the FCEA. Since the term “agricultural-related fields” posed a challenge concerning its interpretation, HSI representatives also were given the opportunity to share their thoughts in written form by October 27, 2008.
During this listening session, 20 individuals, from 17 institutions and two organizations, provided public comments on the definition of Hispanic-Serving Agricultural Colleges and Universities (HSACUs). HSACUs are universities that qualify as Hispanic-Serving institutions as defined in the Higher Education Act of 1965, and offer Associate's, Bachelor's, or other accredited degree programs in agricultural-related fields. The session results can be found on the NIFA Web site at the following web page:
The NIFA Assistant Administrator gave introductory remarks and explained how the session would be conducted. Dr. Jose Vicente, President of Miami-Dade North College, gave a detailed synopsis of their institution and stated that creating the Hispanic-Serving Agricultural Colleges and Universities is essential to increase and diversify the workforce in agricultural-related fields. Dr. Vicente expressed that
Dr. Nora de la Garza from Laredo Community College emphasized the importance of including nontraditional agricultural colleges as the designation for HSACUs is made and that her college is historically a HSI. Laredo Community College and Houston Community College received a USDA grant to organize a Consortium of HSIs on capacity building. The Consortium has expanded to 21 members.
The Texas A&M-Kingsville representative, Mr. Frank Ureño, noted that for an institution to be eligible for this program it should currently be offering an accredited degree program in agriculture, but the most appropriate method would be to define the qualified schools as those with accredited programs in agriculture defined by the classification of instructional programs originally developed by the United States Department of Education. Ms. Maria Alvarez from El Paso Community College in Texas requested that two-year institutions be included in the HSACU definition. Dr. Ray Garza from the University of Texas at San Antonio noted that even though they are not a land-grant institution or an agriculture school, they are associated with two projects such as the Hispanic Leadership Program and the Agriculture and Natural Resources program and that they have placed students in positions throughout the USDA, particularly within the U.S. Forest Service.
Speakers from California State University-Fresno, California State Polytechnic University-Pomona, and California State University-Monterey Bay stated that they as HSIs will have representation on the national agriculture research, education—extension, education, and economics—advisory board. Dr. Charles Boyer, from CSU-Fresno, highlighted the key role CSU-Fresno plays in the richest farmland area in the country. The CSU-Monterey Bay representative, Mr. Stephen Reed, talked about the importance of innovative course offerings such as their agribusiness management concentration. Dr. Sandra Smith, the representative from Global Learning Semesters, a partner with the Hispanic Association of Colleges and Universities (HACU) and all of the HACU institutions in internationalizing student experiences, highlighted USDA's priority in internationalizing agricultural education, research, and outreach and the opportunity to partnership with Land-Grant Institutions.
Dr. Antonio Flores, President and Chief Executive Officer of HACU, an association that represents over 250 associate members (colleges and universities) with a minimum of 25 percent Hispanic undergraduate enrollment, recommended that both two- and four-year HSIs be equitably represented in HSACU. Mr. James Herrell, from Otero Junior College in Southeastern Colorado, articulated that access to higher education is most predicted on where one lives and one's capacity to be mobile. Mr. Paul Gutierrez, from New Mexico State University, stated that demographics of professional staff and faculty teaching in colleges of agriculture across the county did not reflect diversity. He added that more focus should be put on the needs of the rural Hispanic and Native American communities and not on the traditional institutional labels that tend to direct use of the resources.
Dr. Jose Rivera, from the University of the Sacred Heart, a private university in Puerto Rico, highlighted the transformation in the job market and job creation where there is increased focus on interdisciplinary and multidisciplinary education and initiatives. Ms. Agnes Mojica from the Inter American University of Puerto Rico at San German recommended that HSACUs should be considered not by states but by regions to avoid discriminating against certain states that may have a greater number of institutions.
Rebecca Orozco, director of the Center for Life on Earth at Cochise College located in southeastern Arizona emphasized the need for their program in agriculture in this impoverished area, because they are preparing students to continue onward to a university degree in agriculture and related fields.
Because HSACUs are not specifically named in the authorizing statute, NIFA is required to establish a criteria to designate HSACUs based on the definition provided in the legislation, which states that HSACUs are defined as HSIs that offer “agriculture-related programs.” As part of the process to determine which programs qualify as “agriculture-related”, NIFA incorporated a suggestion from the listening session to utilize the Classification of Instructional Programs (CIP) coding system developed by the U.S. Department of Education's National Center for Education Statistics as an instrument to identify agriculture-related programs.
The CIP coding system provides a taxonomic scheme that supports accurate tracking and reporting of fields of study and program completions activity. The CIP is organized on three levels: The 2-digit series represent the most general groupings of related programs, the 4-digit series are intermediate groupings of programs, and the 6-digit codes represent specific instructional programs. More information about CIP codes is available at
To ensure impartiality of the parties involved in constructing the eligibility criteria, NIFA Deputy Administrators selected two National Program Leaders (NPLs) within their respective units to serve on a panel to review the CIP codes in an attempt to determine which instructional programs qualify as agriculture-related fields. The panel of 10 NPLs came from the following NIFA units: Competitive Programs, Economic and Community Systems, Families 4-H and Nutrition, Natural Resources and Environment, and Plant and Animal Systems. NIFA also asked these NPLs to provide input on a list of elements to consider for the eligibility criteria by ranking them in terms of importance (most important to least important). The elements considered were the number of agriculture-related programs, the number of Hispanic graduates, total enrollment, total Hispanic enrollment, and history of working with NIFA. Comments from the panel's review and the listening session provided the foundation in the development of the eligibility criteria for the HSACU certification process.
From the input received at the listening session, NIFA learned that there is a strong preference among stakeholders to limit the number of eligible institutions during the initial phase of the implementation process to maximize the impact of limited funding available at the outset of each HSACU program. However, there is no basis to limit the number of HSACUs if institutions otherwise meet the eligibility requirements as defined in the statute and this regulation.
Furthermore, in March 2010, the American Enterprise Institute released a report, “Rising to the Challenge,” which charted graduation rates of Hispanic College students through use of data on six-year graduation rates from the U.S.
NIFA agrees that a performance-based measure will provide institutions with an incentive to take on a proactive role in increasing focus on graduating Hispanic students in agriculture-related fields in order to be certified as a HSACU. Hence, NIFA will grant HSACU certification to HSIs with agriculture-related programs where at least one Hispanic student obtained a degree in an agriculture-related field during the most recent reported academic year (i.e., the 2008-09 academic year).
HSACU certifications granted to institutions will remain valid for a period of one year.
The certification process starts with NIFA obtaining the latest available report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions during the most recently completed academic year. This report is used to identify Hispanic-serving Institutions that conferred a degree in an instructional program that appears in Appendix A of this Part and confirm that a degree was awarded to a Hispanic student in an agriculture-related field to form a group of institutions that are eligible to be certified as a HSACU (Appendix B).
NIFA will announce the list of schools with HSACU certification through a notice in the
Based on the eligibility criteria provided in this proposed rule along with the most recent report made available to us from the U.S. Department of Education's National Center for Education Statistics (2008-09 academic year), fifty-seven (57) college and universities meet the HSI and agriculture-related field criteria (see Appendix B for a complete list of the 57 schools). Of the 57 schools up for certification, 22 schools offer Associate's degrees (39%), 32 schools offer Bachelor's degrees (56%), 19 offer Master's degrees (33%), and four offer a doctoral degree (7%). Note that the total of schools offering each degree type adds up to more than 57 because several schools offer more than one degree type (e.g., Bachelors and Masters).
Of these 57 schools, 26 schools are in the Western region (46%), 25 schools are in the Southern region (44%), three schools are in the North Central region (5%), and three schools are in the Northeastern region (5%). With this composition, NIFA is confident that HSACUs are sufficiently represented across all regions and institution types.
We expect the complete list of HSACU institutions to be slightly different when the Final Rule is published in the
NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of NIFA's announcement of HSACU institutions. The appellant must submit a request for review to the NIFA official specified in the notification with details on the nature of the disagreement and include supporting documents. The appeal procedure will consist of two levels to allow an institution to request further review on its case should the initial NIFA review result in a rejection of the appeal.
NIFA is publishing this rule as a proposed rule with a 60-day comment period and anticipates addressing comments and publishing a final rule by September 1, 2011.
This action has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. This proposed rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor will it materially alter the budgetary impact of entitlements, grants, user fees, or loan programs; nor will it have an annual effect on the economy of $100 million or more; nor will it adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way. Furthermore, it does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or principles set forth in the Executive Order.
This proposed rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department concluded that the rule will not have a significant economic impact on a substantial number of small entities. The rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
This proposed regulation applies to the Federal assistance program administered by NIFA under the Catalog for Federal Domestic Assistance (CFDA) No. 10.310, Agriculture and Food Research Initiative (AFRI). New CFDAs will be established for each HSACU program as funds are appropriated.
The Department has reviewed this final rule in accordance with the requirements of Executive Order No. 13132, 64 FR 43225 (August 10, 1999) and the Unfunded Mandates Act of 1995, 2 U.S.C. 1501
The Department has reviewed this proposed rule in accordance with Executive Order 13175, 65 FR 67249 (November 9, 2000), and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects 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.”
Executive Order 12866 and the President's Memorandum of June 1, 1998 require each agency to write all rules in plain language. The Department invites comments on how to make this proposed rule easier to understand.
Administrative practice and procedure; Agricultural research, education, extension; Hispanic-Serving Institutions; Federal assistance.
For the reasons set forth in the preamble, the National Institute of Food and Agriculture proposes to add a new part 3434 to Chapter XXXIV of Title 7 of the Code of Federal Regulations to read as set forth below:
Section 7101 of the Food, Conservation, and Energy Act of 2008; Pub. L. 110-246 (7 U.S.C. 3103).
This part establishes the process to certify and designate a group of eligible educational institutions as Hispanic-Serving Agricultural Colleges and Universities, as authorized by Section 7101 of the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 3103; Pub. L. 110-246.
The Secretary will follow the processes and criteria established in this regulation to certify and designate qualifying colleges and universities as HSACUs. Institutions designated as a HSACU will be eligible for five new programs authorized by Congress in section 7129 of the FCEA as well as for other ongoing NIFA programs for which HSACUs are now eligible (e.g., integrated programs authorized by section 406 of the Agricultural Research, Extension, and Education Reform Act of 1998). The five new programs include the HSACU Endowment Fund (formula-based), HSACU Institutional Capacity Building Grants Program (competitive), HSACU Extension Grants Program (competitive), HSACU Applied and Fundamental Research Grants Program (competitive), and HSACU Equity Grants Program (formula-based). The administrative provisions, including reporting requirements, for the HSACU Endowment Fund will be established in a separate part (7 CFR part 3437). The administrative provisions and reporting requirements for the other four new HSACU programs will be established as subparts in 7 CFR part 3430.
(a)
(1) Qualify as Hispanic-serving institutions; and
(2) Offer associate, bachelors, or other accredited degree programs in agriculture-related fields pursuant to § 3434.5 of this Part.
(b)
(1) 1862 land-grant institutions, as defined in section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601);
(2) Institutions that appear in the Lists of Parties Excluded from Federal financial and nonfinancial assistance and benefits programs (Excluded Parties List System);
(3) Institutions that are not accredited by a nationally recognized accredited agency or association; and
(4) Institutions that did not produce a Hispanic graduate in an agriculture-related field of study during the most recent completed academic year.
(a) The Secretary shall use the Classification of Instructional Programs (CIP) coding system developed by the U.S. Department of Education's National Center for Education Statistics as the source of information for all existing instructional programs. This source is located at
(b) A complete list of instructional programs deemed to be agriculture-related fields by the Secretary is provided in Appendix A of this part. This list will include the full six-digit CIP code and program title (or major) for each agriculture-related instructional program.
(c) The list of agriculture-related fields will be updated every five years. However, the Secretary reserves the right to make changes at any time, if deemed appropriate and necessary.
(d) Any changes made in the CIP coding system by the U.S. Department of Education may result in a review or reevaluation of the list of agriculture-related fields by the Secretary.
(a) Except as provided in paragraph (c) of this section, institutions that meet the eligibility criteria set forth in § 3434.4 and offer agriculture-related programs in accordance to the criteria set forth in § 3434.5 (see list in Appendix A) shall be granted HSACU certification by the Secretary.
(b) A complete list of institutions with HSACU certification shall be provided
(c) Institutions that did not produce a Hispanic graduate in an agriculture-related field of study during the most recent completed academic year shall not be granted HSACU certification by the Secretary.
(d) The list of HSACU institutions will be updated annually. However, the Secretary reserves the right to make changes at any time, when deemed appropriate and necessary.
(a) Except as provided in paragraphs (b) and (c) of this section, HSACU certification granted to an institution by the Secretary under this part shall remain valid for a period of one (1) year.
(b) Failure to maintain eligibility status at any time during the HSACU certification period shall result in an immediate revocation of HSACU certification.
(c) Failure to remain in compliance with reporting requirements or adherence to any administrative or national policy requirements listed in award terms and conditions for any of the HSACU programs may result in a suspension or an immediate revocation of HSACU certification.
(a) An institution not listed as a HSACU in § 3434.6 of this Part may submit an appeal to address denial of a certification made pursuant to this part. Such appeals must be in writing and received by the Appeals Officer, Policy and Oversight Division, National Institute of Food and Agriculture, U.S. Department of Agriculture, 800 9th Street, SW., Washington, DC 20024 within thirty (30) days following an announcement of institutions designated for certification. The Appeals Officer will consider the record of the decision in question, any further written submissions by the institution, and other available information and shall provide the appellant a written decision as promptly as circumstances permit. Such appeals constitute an administrative review of the decision appealed from and are not conducted as an adjudicative proceeding.
(b) Appeals involving an agriculture-related field of study must include the CIP code and program title of the field of study (or major).
(c) Appeals from non-HSI schools will not be considered.
(d) The NIFA Assistant Director of the Institute of Youth, Family, and Community shall serve as the Appeals Officer.
(e) In considering such appeals or administrative reviews, the Appeals Officer shall take into account alleged errors in professional judgment or alleged prejudicial procedural errors by NIFA officials. The Appeals Officer's decision may:
(1) Reverse the appealed decision;
(2) Affirm the appealed decision;
(3) Where appropriate, withhold a decision until additional materials are provided.
The Appeals Officer may base his/her decision in whole or part on matters or factors not discussed in the decision appealed from.
(f) If the NIFA decision on the appeal is adverse to the appellant or if an appellant's request for review is rejected, the appellant then has the option of submitting a request to the NIFA Deputy Director for Food and Community Resources for further review.
(g) The request for further review must be submitted to Policy and Oversight Division, National Institute of Food and Agriculture, U.S. Department of Agriculture, 800 9th Street, SW., Washington, DC 20024 within thirty (30) days following the Appeals Officer's decision.
(h) No institution shall be considered to have exhausted its administrative remedies with respect to the certification or decision described in this part until the NIFA Deputy Director for Food and Community Resources has issued a final administrative decision pursuant to this section. The decision of the NIFA Deputy Director for Food and Community Resources is considered final.
(i) Appellants shall be notified in writing of any decision made by NIFA in regards to the appeal.
(a) The recertification process for a HSACU remains the same as the process outlined in § 3434.6.
(b) There is no limit to the number of times an institution may be recertified as a HSACU.
(c) In the event an institution is not granted recertification due to noncompliance with reporting requirements for a HSACU program, the institution shall be notified in writing and given a period of ninety (90) days from the date of notification to be in compliance.
(a) The certification process does not involve any reporting requirements.
(b) Reporting requirements for HSACU programs (e.g., HSACU Endowment Fund) shall be established in separate parts.
The instructional programs listed in this appendix are observed to be agriculture-related fields for HSACU eligibility purposes. Programs are listed in numerical order by their six-digit CIP code followed by the full title of the instructional program, as listed by the U.S. Department of Education.
The institutions listed in this appendix will be granted HSACU certification by the Secretary and will be eligible for HSACU programs for the period starting October 1, 2011 and ending September 30, 2012. Institutions are listed alphabetically with the campus indicated where applicable under the state of the school's location.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Request for Information (RFI).
The Energy Policy and Conservation Act as amended (42 U.S.C. 6291
Written comments and information are requested by July 13, 2011.
Interested persons may submit comments in writing, identified by docket number EERE-2011-BT-STD-0031, by any of the following methods:
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Mr. Charles Llenza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2192. E-mail:
In the Office of General Counsel, Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-7796. E-mail:
Title III of the Energy Policy and Conservation Act (EPCA) of 1975, as amended (42 U.S.C. 6291
Section 6311(A) includes electric motors and pumps as “covered equipment.” Section 6316(a) describes how provisions in Part A (which concerns “Consumer Products Other Than Automobiles”) apply to industrial equipment, which includes pumps.
Sections 6314 and 6315 concern test procedures and labeling, respectively, for covered equipment. The provisions in these sections, in combination with section 6316(a), give DOE authority to establish test procedures and to prescribe a labeling rule for pumps.
Based on the information DOE receives in response to this Request for Information, DOE will determine whether to initiate a rulemaking to establish a test procedure, energy conservation standard, or labeling requirement for commercial and industrial pumps.
EPCA lists several specific types of “industrial equipment” as “covered equipment,” including electric motors and pumps. (42 U.S.C. 6311(1))
DOE estimates that commercial, industrial, and agricultural pumps consume approximately 0.63 quads per year of electricity and that technologies exist that can reduce this consumption by approximately 0.190 quads annually.
DOE used industry and census data to calculate the average establishment energy use for pumps.
Several estimates have been made of industrial pump electricity use. Four are discussed here. The most recent, made for the DOE Office of Energy Efficiency and Renewable Energy Industrial Technologies program by Energetics Incorporated, states that the total industrial energy use of industrial pumps is estimated to be 185,000 million kWh or 0.63 quads site energy use. The machine drive energy data used in this estimate (
Another recent report for the United Nations (“Motor System Efficiency Supply Curves UNIDO,” Dec. 2010),
An earlier study conducted for DOE, “United States Industrial Electric Motor Systems Opportunities Assessment, December, 2002,”
The American Council for an Energy-Efficient Economy (ACEEE) 2003 report “Realizing Energy Efficiency Opportunities in Industrial Fan and Pump Systems” summarizes the energy use of pumps in a variety of industrial settings (including manufacturing,
The studies cited above (see Table 2.3) provide estimates of total annual pump energy use ranging from about 126,000 million kWh to 185,000 million kWh (about 0.43 to 0.63 quads) of site energy use. All the studies excluded oil and gas extraction, and water and wastewater pumping. All the studies found that the paper, chemical, and petroleum and coal products manufacturing industries are the three leading users of pump energy. If the total industrial energy use is estimated using the most recent MECS and including all of the petroleum refining industry pump energy use, an estimate of 0.63 quads of site electricity use is derived. The primary energy use is about three times the site energy use, or 1.9 quads.
Based on U.S. Census data,
Using the highest estimate, the average per-establishment energy use for pumps for agricultural, manufacturing, and mining establishments in 2006 was 1.27 million kWh.
Based on a 1999 analysis by Arthur D. Little, Inc. (ADL), the average per-establishment energy use for pumps in commercial heating, ventilation, and air conditioning (HVAC) applications for 1999 was about 8.5 MWh, which exceeds 150 kWh for the 12-month period of 1999. The ADL analysis, “Energy Consumption Characteristics of Commercial Building HVAC Systems,” Volume 2, used EIA's 1999 Commercial Buildings Energy Consumption Survey data to develop its estimate.
Reports cited in this RFI estimate potential energy savings from pumps of 10 percent to 50 percent.
Pump system efficiencies depend on design factors such as surface roughness, internal clearances, solids handling capability, curve shape, mechanical shaft seal losses, and other factors.
Analyses based on data from the 2003 EU “European Guide to Pump Efficiency for Single Stage Centrifugal Pumps”
The U.S. Environmental Protection Agency and DOE jointly administer the voluntary ENERGY STAR labeling program (
DOE has not previously conducted an energy conservation standard rulemaking for pumps. With this notice, DOE states its intention to evaluate the energy savings potential of energy conservation standards, labels, or both for commercial and industrial pumps. DOE requests information from interested parties regarding product markets, energy use, test procedures, and energy efficient product design. After public comment on this RFI, DOE will consider developing test procedures and energy conservation standards or labels for this equipment.
Test procedures prescribed in accordance with EPACT 2005 “shall be reasonably designed to produce test results which reflect energy efficiency, energy use, and estimated operating costs of a type of industrial equipment (or class thereof) during a representative average use cycle (as determined by the Secretary), and shall not be unduly burdensome to conduct.” (42 U.S.C. 6314) In a test procedure rulemaking, DOE prepares a notice of proposed rulemaking (NOPR) and allows interested parties to present oral and written data, views, and arguments with respect to such procedures. In prescribing new test procedures, DOE takes into account relevant information including technological developments relating to energy use or energy efficiency of pumps.
With respect to rulemakings for energy conservation standards, DOE typically prepares a framework document, which describes the issues, analyses, and process that it is considering for the development of energy conservation standards. After receiving comments on the framework document, DOE typically prepares a preliminary analysis and technical support document (TSD). The preliminary analysis typically provides initial draft analyses of potential energy conservation standards on consumers, manufacturers, and the nation. None of these steps is required by statute.
DOE is required to publish a NOPR for new or amended conservation standards. The NOPR presents DOE's proposal for potential energy conservations standards and a summary of the results of DOE's supporting technical analysis. The details of DOE's standards analysis are provided in a TSD that describes both the burdens and benefits of potential standards, pursuant to 42 U.S.C. 6295(o)(B)(i). After the publication of the NOPR, DOE affords interested persons an opportunity during a period of not less than 60 days to provide oral and written comment. After receiving and considering the comments on the NOPR and not less than 90 days after the publication of the NOPR, DOE issues any final rule prescribing new or amended energy conservation standards.
DOE will consider adding a definition for “Commercial, Industrial, and Agricultural Pumps (Pumps)” in the Code of Federal Regulations to clarify coverage of any potential test procedure or energy conservation standard. There currently is no statutory definition of pumps. DOE is considering the following definitions of pumps for potential test procedures and energy conservation standards and to provide clarity for interested parties as it continues its analyses. DOE seeks feedback from interested parties on the following potential definition(s) of pumps.
Rotodynamic pumps are kinetic machines that impart energy continuously to the pumped fluid by means of a rotating impeller, propeller, or rotor. The most common types of rotodynamic pumps are centrifugal (radial), mixed flow, and axial flow pumps.
Centrifugal pumps use bladed impellers with essentially radial outlets to transfer rotational mechanical energy to the fluid, primarily by increasing the fluid kinetic energy (angular
Centrifugal pumps that have single inlet impellers usually have a specific speed below approximately 90 (4,500). Those having double-suction impellers usually have a specific speed below approximately 135 (7,000). In pumps of this type, the liquid enters the impeller at the hub and flows radially to the periphery, exiting perpendicular to the rotating shaft.
This type of pump has a single inlet impeller whereby the flow enters axially and discharges in a mixed axial and radial direction. Pumps of this type usually have a specific speed that ranges from approximately 90 (4,500) to 200 (10,000).
A pump of this type, sometimes called a propeller pump, has a single inlet impeller. The flow enters axially and discharges nearly axially. Pumps of this type usually have a specific speed above approximately 200 (10,000).
Positive displacement pumps add energy by trapping liquid in a confined space and forcibly moving it out of the pump and into the discharge pipe. This pumping action is accomplished by one of three methods:
(1) Reciprocating action of plungers, pistons, bellows or diaphragms;
(2) Rotary action of mechanical devices such as gears, screws, vanes, etc.; or
(3) Blow case arrangements using pressurized air to displace liquid.
DOE will accept information and data in response to this Request for Information as provided in the
DOE welcomes comments on the energy use and energy efficiency of commercial and industrial pumps and related issues. DOE is particularly interested in receiving comments from interested parties on the following issues:
(1) Definition(s) of pumps, pump product classes, and diversity of pump types within pump product classes;
(2) Energy use by pumps as summarized in Table 3.1;
(3) Overview of the industrial and commercial pump market, including shipments and efficiencies ranges;
(4) Availability and applicability of U.S. and international test procedures for pumps;
(5) Assistance and resources available from stakeholders, states, local jurisdictions, and others.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Forest, VA to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures serving New London Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations within the National Airspace System.
Comments must be received on or before July 28, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2011-0378; Airspace Docket No. 11-AEA-11, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0378; Airspace Docket No. 11-AEA-11) and be submitted in triplicate to the Docket Management System (see
Comments wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0378; Airspace Docket No. 11-AEA-11. The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Forest, VA providing the controlled airspace required to support the new RNAV GPS standard instrument approach procedures for New London Airport. Controlled airspace extending upward from 700 feet above the surface is required for the safety and management of IFR operations.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in subtitle VII, part, A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at New London Airport, Forest, VA.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 8.4-mile radius of New London Airport and within 2 miles either side of the 347° bearing from the airport extending from the 8.4-mile radius to 12.1 miles northwest of the airport.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to increase the size of the Cottonwood Island Anchorage on the Columbia River. The change is necessary to help ensure that there is sufficient space to accommodate vessels needing to anchor at the anchorage and will do so by expanding the area available for anchoring.
Comments and related material must be received by the Coast Guard on or before July 13, 2011.
You may submit comments identified by docket number USCG-2011-0348 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or e-mail MST1 Jaime Sayers, Waterways Management Branch, Coast Guard Sector Columbia River; telephone
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0348), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
Based on current usage and forecasted growth in shipping on the Columbia River, the Captain of the Port Columbia River believes that the Cottonwood Island Anchorage's size is insufficient as currently established. This rule would increase the size of the Cottonwood Island Anchorage on the Columbia River to help ensure that there is sufficient space to accommodate vessels needing to anchor at the anchorage.
This proposed rule would extend the east side of the existing Cottonwood Island Anchorage by approximately one mile. The new anchorage would encompass all waters of the Columbia River enclosed by a line beginning west-southwest of Longview, WA at latitude 46° 05′ 56.83″ N longitude 122° 56′ 53.22″ W; thence continuing easterly to latitude 46° 05′ 14.02″ N longitude 122° 54′ 45.75″ W; thence continuing east-southeasterly to latitude 46° 04′ 57.08″ N longitude 122° 54′ 12.46″ W; thence continuing southeasterly to latitude 46° 04′ 37.26″ N longitude 122° 53′ 45.50″ W; thence continuing south-southeasterly to latitude 46° 04′ 13.70″ N longitude 122° 53′ 23.72″ W; thence continuing south southeasterly to latitude 46° 03′ 54.92″ N longitude 122° 53′ 11.88″ W; thence continuing south-southeasterly to latitude 46° 03′ 34.95″ N longitude 122° 53′ 03.24″ W; thence continuing south-southeasterly to latitude 46° 03′ 11.60″ N longitude 122° 52′ 56.36″ W; thence continuing southerly to latitude 46° 02′ 27.30″ N longitude 122° 52′ 52.05″ W; thence continuing westerly to latitude 46° 02′ 26.90″ N longitude 122° 53′ 00.47″ W; thence continuing northerly to latitude 46° 03′ 00.78″ N longitude 122° 53′ 05.89″ W; thence continuing north-northwesterly to latitude 46° 03′ 32.06″ N longitude 122° 53′ 19.68″ W; thence continuing north-northwesterly to latitude 46° 03′ 50.84″ N longitude 122° 53′ 27.81″ W; thence continuing north-northwesterly to latitude 46° 04′ 08.10″ N longitude 122° 53′ 38.70″ W; thence continuing north-northwesterly to latitude 46° 04′ 29.41″ N longitude 122° 53′ 58.17″ W; thence continuing north-northwesterly to latitude 46° 04′ 49.89″ N longitude 122° 54′ 21.57″ W; thence continuing northwesterly to latitude 46° 05′ 06.95″ N longitude 122° 54′ 50.65″ W; thence continuing northwesterly to latitude 46° 05′ 49.77″ N longitude 122° 56′ 58.12″ W; thence continuing north-northeasterly to the beginning point at latitude 46° 05′ 56.83″ N longitude 122° 56′ 53.22″ W.
The previously existing anchorage ends and the new extended portion of the anchorage proceeds southerly from the points at latitude 46° 03′ 34.95″ N longitude 122° 53′ 03.24″ W and latitude 46° 03′ 32.06″ N and longitude 122° 53′ 19.68″ W.
Geographically this amendment would extend the current anchorage from the east end of Cottonwood Island in the vicinity of the spoil area to approximately the Kalama North dock and the previous site of the Trojan plant.
This anchorage location was chosen because it is a central anchorage for vessels coming both upriver and downriver. It would allow vessels a safe place to stop in the event they can no longer transit the river due to weather conditions or safety conditions. This area of the river also has a naturally occurring deep water section that is adjacent to the existing anchorage that allows for the safe anchoring of deep draft vessels.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The proposed rule is not significant because the modification of an existing anchorage would not have any significant costs or impacts on maritime activities associated with it.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: the owners or operators of vessels wishing to anchor in or transit the anchorage established by this rule. The rule would not have a significant economic impact on a substantial number of small entities because vessels will still be able to use this area of the river. As is the case under the existing regulation, small vessels in the anchorage would be required to move while vessels are entering and/or exiting the anchorage to ensure safety of the smaller vessel. Vessels would be able to use the anchorage while deep draft vessels are at anchor as long as they maintain a safe distance from the vessels and do not pose a threat to the large vessel or their own vessel.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Waterways Management Branch, Coast Guard Sector Columbia River Oregon, telephone 503-240-9300. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:
1. The authority citation for part 110 continues to read as follows:
33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
2. Revise § 110.228(a)(10) to read as follows:
(a) * * *
(10)
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA or the Agency) is proposing to revise the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous wastes when they are discarded or intended to be discarded. Currently, under the LDR program, most carbamate wastes must be treated to meet numeric concentration limits before they can be land disposed. However, the lack of readily available analytical standards makes it difficult to measure whether the numeric LDR concentration limits have been met. Therefore, we are proposing as an alternative the use of the best demonstrated available technologies (BDAT) for treating these wastes. In addition, this action proposes to remove the carbamate Regulated Constituents from the table of Universal Treatment Standards.
Written comments must be received by July 13, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2008-0332, by one of the following methods:
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For more information on this proposed rulemaking, contact Mary Jackson, Office of Resource Conservation and Recovery (MC: 5304P), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. She can also be reached by telephone on 703-308-8453 or by e-mail at
EPA is proposing to revise the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products, off-specification or manufacturing chemical intermediates and container residues that become hazardous wastes when they are discarded or intended to be discarded. This action is being taken because there may be no analytical standards readily available with which to measure compliance with the LDR requirements. An analytical standard is a reference material with a known concentration of a target chemical that is used to calibrate analytical instruments in order to confirm detection and quantification of that chemical.
RCRA LDR-related statutory language prohibits the land disposal of hazardous wastes unless wastes meet treatment standards set as concentration-based limits or methods of treatment designed to substantially diminish a hazardous waste's toxicity and/or mobility. Currently under the LDR program, most carbamate hazardous wastes must be treated to meet numeric concentration limits before the wastes can be land disposed. The lack of readily available analytical standards makes it difficult to measure whether the numeric concentration limits have been met. Therefore, we are proposing as an alternative the use of the best demonstrated available technologies for treating these wastes. This will provide significant treatment to minimize threats to human health and the environment, while avoiding the problems that result from the lack of analytical standards when determining if the numeric concentration limits have been met.
In addition, this action proposes to remove the carbamate Regulated Constituents from the table of Universal Treatment Standards at 40 CFR 268.48. We are taking this action so that they are not classified as underlying hazardous constituents requiring treatment to meet numeric concentration limits in wastes that display the characteristic of ignitability, reactivity, corrosivity or toxicity at the point of generation.
Today's proposed rule is necessary to allow hazardous waste management facilities to certify under 268.7 that carbamate-bearing wastes have been treated in compliance with the applicable LDR requirements. These facilities face potential curtailment of operations when they are unable to demonstrate waste and treatment residual concentrations meet the numerical LDR treatment standards through analytical testing.
In the Rules and Regulations section of this
The regulatory text for the proposal is identical to that for the Direct Final Rule published in the Rules and Regulations section of this
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible.
• Make sure to submit your comments by the comment period deadline identified.
For a complete discussion of all of the administrative requirements applicable to this action, see the Direct Final Rule in the Rules and Regulations section of today's
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as (1) a small business that is primarily engaged in hazardous waste treatment and disposal as defined by NAICS code 562211 with annual receipts of less than 12.5 million dollars (based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule will not have a significant economic impact on a substantial number of small entities because its merely establishes alternative treatment standards expressed as technologies that may be used to treat the carbamate hazardous waste under the LDR program. These carbamate hazardous wastes already are subject to numeric treatment standards under the LDR program, and thus, this rule will have no new impacts. Therefore, we hereby certify that this rule will not add any new regulatory requirements to small entities, and does not require a regulatory flexibility analysis.
Environmental protection, Hazardous waste, Land disposal restrictions.
Environmental protection, Hazardous waste.
Forest Service, USDA.
Notice of meeting.
The Humboldt (NV) Resource Advisory Committee (RAC) will meet in Winnemucca, Nevada. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates 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 meetings are open to the public. The purpose of the meetings is to review and recommend projects for funding.
There will be two July meetings. The first meeting will be held on July 7, 2011. The second meeting will be on July 27, 2011. Meetings will begin at 10 a.m. and end approximately 5 p.m.
The July 7th meeting will be held at the Humboldt County Library, 85 East 5th St., Winnemucca, Nevada 89445; and the July 27th meeting will be held at the County Extension Office, 1085 Fairgrounds Road, Winnemucca, Nevada in the 4-H room.
All project proposals and comments, including names and addresses when provided, are placed in the record and are available for public inspections and copying. The public may inspect project proposals and comments received at the Santa Rosa Ranger District. Please call ahead to 775-623-5025 to facilitate entry in the building to view these documents.
Shonna Ingram, RAC Coordinator, USDA, Humboldt-Toiyabe National Forest, Santa Rosa Ranger District, 1200 E. Winnemucca Blvd., Winnemucca, Nevada 89445; (775) 623-5025 x 117; e-mail:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed in
The following business will be conducted: Agenda items for July 7th meeting include: (1) Overview of project selection process; (2) Presentation and review of submitted proposals, and (3) Public Comment. Agenda items for July 27th meeting include: (1) Overview of project selection process; (2) Presentation and review of submitted proposals, (3) Selection of recommended proposals by RAC, and (4) Public Comment.
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. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by June 23, 2011, to be scheduled on the agenda. Written comments and request for time and for oral comments must be sent to the Santa Rosa Ranger District, 1200 East Winnemucca Blvd., Winnemucca Nevada 89445, or by e-mail to
Project submittals by qualified entities must be received no later than 5 p.m. on June 23rd, 2011. Project forms and instructions are available on the Secure Rural Schools Web site—
An application has been submitted to the Foreign-Trade Zones Board (the Board) by Nissan North America, Inc. (NNA), operator of FTZ 78A, NNA facilities, Smyrna and Decherd, Tennessee, requesting authority to expand the scope of FTZ manufacturing authority. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and section 400.28(a)(2) of the Board's regulations (15 CFR part 400). It was formally filed on June 7, 2011.
Subzone 78A (over 4,000 employees, 550,000 light-duty motor vehicles/year) was approved by the Board in 1982 with authority granted for the manufacture of light-duty pickup trucks at the NNA plant located at 983 Nissan Drive in Smyrna, Tennessee (Board Order 190, 47 FR 16191, 4-12-1982), and the scope of manufacturing authority was expanded to include passenger sedans and minivans, engines, and transmissions in 1984 (Board Order 272, 49 FR 35395, 9-7-1984). In 1993, the subzone was expanded and the scope of manufacturing authority was expanded to accommodate an increase in overall production capacity at the plant (Board Order 632, 58 FR 18850, 3-30-1993). The subzone was subsequently expanded in 1997 to add a new engine and transmission production facility in Decherd, Tennessee (Board Order 869, 62 FR 13595, 3-21-1997).
The applicant now seeks to expand the scope of authority to include electric-powered, light-duty passenger vehicles (up to 150,000 vehicles/year) and related lithium-ion batteries (200,000 units/year) as additional finished products to be manufactured under FTZ procedures at the Smyrna facility. The following foreign-origin materials and components (representing about 31% of the value of the finished products) would be used in the manufacture of the electric passenger vehicles and lithium-ion batteries: Acid-based additives, wash fluid (acrylic/
Expanded FTZ procedures could exempt NNA from customs duty payments on the foreign-origin components used in electric passenger vehicles and lithium-ion batteries manufactured for export. On its domestic shipments, NNA would be able to choose the duty rate during customs entry procedures that applies to electric passenger vehicles (duty rate — 2.5%) and lithium-ion batteries (3.4%) for the foreign inputs noted above. Customs duties also could possibly be deferred or reduced on foreign status production equipment. NNA would also be exempt from duty payments on foreign inputs that become scrap during the production process.
In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the Executive Secretary, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002. The closing period for receipt of comments is August 12, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to August 29, 2011.
A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Pierre Duy at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize and expand FTZ 153 under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 2-10 if not activated by June 30, 2016, and to a three-year ASF sunset provision for usage-driven sites that would terminate authority for Sites 11-14 if no foreign-status merchandise is admitted for a
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting the fourth administrative review of the antidumping duty order on certain lined paper products (“lined paper”) from the People's Republic of China (“PRC”) with respect to three producers/exporters for the period September 1, 2009, through August 31, 2010. We are preliminarily rescinding the review with respect to Shanghai Lian Li Paper Products Co. Ltd. (“Lian Li”); Leo's Quality Products Co., Ltd./Denmax Plastic Stationery Factory (“Leo/Denmax”); and the Watanabe Group (consisting of Watanabe Paper Products (Shanghai) Co., Ltd. (“Watanabe Shanghai”); Watanabe Paper Products (Linqing) Co., Ltd. (“Watanabe Linqing”); and Hotrock Stationery (Shenzhen) Co., Ltd. (“Hotrock Shenzhen”) (hereafter referred to as “Watanabe” or the “Watanabe Group”)).
Interested parties are invited to comment on these preliminary results. We intend to issue the final results no later than 120 days from the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”).
Joy Zhang or Victoria Cho, AD/CVD Operations, Office 3, Import Administration, International Trade
On September 1, 2010, the Department published in the
On November 12, 2010, we issued the non-market economy antidumping questionnaire to Leo/Denmax, Lian Li, and the Watanabe Group via FedEx Express.
The scope of this order includes certain lined paper products, typically school supplies (for purposes of this scope definition, the actual use of or labeling these products as school supplies or non-school supplies is not a defining characteristic) composed of or including paper that incorporates straight horizontal and/or vertical lines on ten or more paper sheets (there shall be no minimum page requirement for looseleaf filler paper) including but not limited to such products as single- and multi-subject notebooks, composition books, wireless notebooks, looseleaf or glued filler paper, graph paper, and laboratory notebooks, and with the smaller dimension of the paper measuring 6 inches to 15 inches (inclusive) and the larger dimension of the paper measuring 8
Specifically excluded from the scope of this order are:
• Unlined copy machine paper;
• Writing pads with a backing (including but not limited to products commonly known as “tablets,” “note pads,” “legal pads,” and “quadrille pads”), provided that they do not have a front cover (whether permanent or removable). This exclusion does not apply to such writing pads if they consist of hole-punched or drilled filler paper;
• Three-ring or multiple-ring binders, or notebook organizers incorporating such a ring binder provided that they do not include subject paper;
• Index cards;
• Printed books and other books that are case bound through the inclusion of binders board, a spine strip, and cover wrap;
• Newspapers;
• Pictures and photographs;
• Desk and wall calendars and organizers (including but not limited to such products generally known as “office planners,” “time books,” and “appointment books”);
• Telephone logs;
• Address books;
• Columnar pads & tablets, with or without covers, primarily suited for the recording of written numerical business data;
• Lined business or office forms, including but not limited to: pre-printed business forms, lined invoice pads and paper, mailing and address labels, manifests, and shipping log books;
• Lined continuous computer paper;
• Boxed or packaged writing stationery (including but not limited to products commonly known as “fine business paper,” “parchment paper”, and “letterhead”), whether or not containing a lined header or decorative lines;
• Stenographic pads (“steno pads”), Gregg ruled (“Gregg ruling” consists of a single- or double-margin vertical ruling line down the center of the page. For a six-inch by nine-inch stenographic pad, the ruling would be located approximately three inches from the left of the book.), measuring 6 inches by 9 inches;
Also excluded from the scope of this order are the following trademarked products:
• Fly
• Zwipes
• FiveStar®Advance
• FiveStar Flex
Merchandise subject to this order is typically imported under headings 4820.10.2050, 4810.22.5044, 4811.90.9090, 4820.10.2010, 4820.10.2020 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The HTSUS headings are provided for convenience and customs purposes; however, the written description of the scope of this order is dispositive.
On December 15 and December 22, 2010, Lian Li and the Watanabe Group submitted letters, respectively, certifying that they did not export the subject merchandise to the United States during the period of review (“POR”). On December 22, 2010, the petitioner submitted a letter pointing out that Lian Li's certification referenced the incorrect POR. On December 27, 2010, Lian Li submitted a letter clarifying the correct POR. On January 03, 2011, Leo/Denmax also certified that it did not export the subject merchandise to the United States during the POR. Both Lian Li and Leo/Denmax requested that the Department rescind the administrative review with respect to each company. On January 5, 2011, the petitioner submitted a letter questioning the Watanabe Group's no shipment claim. The petitioner requested that the Department obtain from U.S. Customs and Border Protection (“CBP”) copies of any entry documents during the POR that list any Watanabe Group companies as the exporter of record.
On February 7, 2011, we conducted an internal query of the CBP entry data with respect to the three companies. The CBP data entry confirms the claims of no shipments from Lian Li, Leo/Denmax and the Watanabe Group, and we issued a memorandum explaining our analysis.
In this case, as stated above, the Watanabe Group, Lian Li and Leo/Denmax certified that they had no shipments and the Department has confirmed through its examination of data from CBP that there were no shipments of subject merchandise during the POR by the Watanabe Group and/or Lian Li and/or Leo/Denmax.
Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we are preliminarily rescinding this review of the antidumping duty order on lined paper from the PRC, for the period September 1, 2009, through August 31, 2010. If the rescission is confirmed in our final results, the cash deposit rate for the Watanabe Group, Lian Li, and Leo/Denmax will continue to be the rate established in the most recently completed segment of this proceeding.
In accordance with 19 CFR 351.301(c)(1), for the final results of these NSRs, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record.
Interested parties may submit case briefs and/or written comments for consideration in the Department's final results not later than 30 days after publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room 1117,
The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of the preliminary results, and will publish these results in the
The Department will instruct CBP to assess antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before July 5, 2011. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5 p.m. at the U.S. Department of Commerce in Room 3720.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) is extending the time limit for the preliminary results of the new shipper review of uncovered innerspring units (“innersprings”) from the People's Republic of China (“PRC”). The period of review for this review is February 1, 2010 through August 4, 2010.
Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On October 7, 2010 the Department published a notice of initiation of the new shipper review in the antidumping duty order on innersprings from the PRC for Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory (“Quan Li”) and Foshan Yongnuo Import & Export Co., Ltd. (“Yongnuo”).
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the “Act”), and
The Department has determined that the review is extraordinarily complicated as the Department must issue, and analyze the responses to, additional supplemental questionnaires concerning Quan Li's and Yongnuo's sales practices and factors of production. Moreover, the Department needs additional time to analyze the
Therefore, the Department is extending the time limit for completion of the preliminary results of this new shipper review by an additional 44 days from the June 1, 2011, deadline. As a result, the preliminary results will now be due no later than July 15, 2011. The final results continue to be due 90 days after the issuance of the preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Act.
National Institute of Standards and Technology, Commerce.
Notice.
The National Institute of Standards and Technology (NIST), as the National Metrology Institute (NMI) of the U.S., is signatory to the Mutual Recognition Arrangement (MRA) of the Comité International des Poids et Mesures (CIPM). Section 6.1 of the MRA provides for cases in which an NMI may designate a laboratory other than itself to participate in CIPM key comparisons on behalf of its nation and to be responsible for disseminating the national measurement standards relevant to that particular measurand. This notice announces that NIST has designated the Cannon Instrument Company (State College, PA) pursuant to the MRA for the measurements of viscosity until January 1, 2013.
NIST's designation of the Cannon Instrument Company for the measurements of viscosity will expire on January 1, 2013. NIST will consider comments received by that date.
Comments regarding NIST's designation of Cannon may be sent to Dr. James Olthoff, National Institute of Standards and Technology, Deputy Director for Measurement Services, Physical Measurement Laboratory, 100 Bureau Drive, Gaithersburg, MD 20899-8100, or by telephone (301) 975-2220, or by e-mail at
Dr. James Olthoff, National Institute of Standards and Technology, Deputy Director for Measurement Services, Physical Measurement Laboratory, 100 Bureau Drive, Gaithersburg, MD 20899-8100, or by telephone (301) 975-2220, or by e-mail at
The MRA established by the CIPM under the authority of the Metre Convention has the following objectives:
• To establish the degree of equivalence of national measurement standards maintained by NMIs;
• To provide for the mutual recognition of Calibration and Measurement Capability (CMCs) issued by NMIs;
• Thereby to provide governments and other parties with a secure technical foundation for wider agreements related to international trade, commerce, and regulatory affairs.
The process established to support these objectives includes:
• Comparisons of measurement capabilities of participating NMIs and Designated Institutes (DIs), either through CIPM or Regional Metrology Organizations (RMOs) Key Comparisons (KCs); and
• Quality systems supporting the continued validity and recognition of CMCs in order to establish mutual confidence in measurements performed by NMIs or their DIs.
Signatories to the MRA, which include the U.S., provide information on their nation's calibration and measurement capabilities to the International Bureau of Weights and Measures (BIPM), which publishes these in a database for use by the international community. The results of key or supplementary comparisons provide quantitative demonstration of the degree of equivalence among participating NMIs and DIs. Such demonstrations provide quantitative evidence of the claims constituted by CMCs.
NIST may designate for recognition by the CIPM another U.S. institution that is willing and has the capability to discharge the responsibilities for a specific measurement parameter or parameter range under the terms of the MRA. In designating an institution, an NMI should consider:
• Whether the institution is impartial;
• Whether the institution offers calibration or other appropriate services in the field to all customers that may request such services;
• Whether the institution is prepared to share results of comparisons and internal processes that relate for example to equipment used, environmental conditions, laboratory staff, technical procedures, etc. to appropriate experts in Consultative Committees and/or RMOs technical committees; and
• Whether the institution is prepared to provide information on the processes that have been set up for review of Quality Systems and on-site peer review visits.
An institution designated by NIST to serve as a U.S. DI will:
• Participate, in partnership with NIST, in activities of the CIPM MRA and be bound by the requirements of the MRA under the same conditions under which NIST itself participates in such efforts;
• Provide the U.S. national measurement standards for a specific measurand;
• Disseminate standards for that measurand to U.S. industry, government, and academia.
Cannon Instrument Company of State College, Pennsylvania has served as the U.S. DI for viscosity measurements since 2003. After considering the criteria listed above, NIST has designated Cannon Instrument Company as the U.S. DI for viscosity until January 1, 2013.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for nominations.
This notice is a call for nominees for the U.S. Delegation to the July 2011 International Whaling Commission (IWC) annual meeting. The non-federal representative(s) selected as a result of this nomination process is(are) responsible for providing input and recommendations to the U.S. IWC Commissioner representing the positions of non-governmental organizations. Generally, only one non-governmental position is selected for the U.S. Delegation.
The IWC is holding its 63rd annual meeting July 11-15, 2011, in Jersey, United Kingdom. All written nominations for the U.S. Delegation to the IWC annual meeting must be received by June 24th, 2011.
All nominations for the U.S. Delegation to the IWC annual meeting should be addressed to Ms. Monica Medina, U.S. Commissioner to the IWC, and sent via post to: Ryan Wulff, National Marine Fisheries Service, Office of International Affairs, 1315 East-West Highway, SSMC3 Room 12620, Silver Spring, MD 20910.
Ryan Wulff, 202-482-3689.
The Secretary of Commerce is charged with the responsibility of discharging the domestic obligations of the United States under the International Convention for the Regulation of Whaling, 1946. The U.S. IWC Commissioner has responsibility for the preparation and negotiation of U.S. positions on international issues concerning whaling and for all matters involving the IWC. He is staffed by the Department of Commerce and assisted by the Department of State, the Department of the Interior, the Marine Mammal Commission, and by other agencies. The non-federal representative(s) selected as a result of this nomination process is(are) responsible for providing input and recommendations to the U.S. IWC Commissioner representing the positions of non-governmental organizations. Generally, only one non-governmental position is selected for the U.S. Delegation.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in July, August, and September of 2011. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2011.
The Atlantic Shark Identification Workshops will be held July 14, July 21, August 11, September 8, and September 22, 2011.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on July 13, July 20, August 17, August 24, September 14, and September 21, 2011.
See
The Atlantic Shark Identification Workshops will be held in Wilmington, NC; Port Orange, FL; Dania Beach, FL; Panama City, FL; and Port Orange, FL.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Manahawkin, NJ; Gulfport, MS; Myrtle Beach, SC; Daytona Beach, FL; Panama City, FL; and Warwick, RI.
See
Richard A. Pearson by phone: (727) 824-5399, or by fax: (727) 824-5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit which first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 60 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the
1. July 14, 2011, 12 p.m.-4 p.m., Comfort Inn University, 151 South College Road, Wilmington, NC 28403.
2. July 21, 2011, 12 p.m.-4 p.m., LaQuinta Inn & Suites, 1791 Dunlawton Avenue, Port Orange, FL 32127.
3. August 11, 2011, 12 p.m.-4 p.m., Nova Southeastern Oceanographic Center, Modular Classroom 1, 8000 North Ocean Drive, Dania Beach, FL 33004.
4. September 8, 2011, 12 p.m.-4 p.m., National Marine Fisheries Service Laboratory, 3500 Delwood Beach Road, Panama City, FL 32408.
5. September 22, 2011, 12 p.m.-4 p.m., La Quinta Inn & Suites, 1791 Dunlawton Avenue, Port Orange, FL 32127.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 112 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. These certificate(s) are valid for 3 years. As such, vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses with longline or gillnet gear.
1. July 13, 2011, 9 a.m.-5 p.m., Holiday Inn, 151 Route 72 East, Manahawkin, NJ 08050.
2. July 20, 2011, 9 a.m.-5 p.m., Holiday Inn, 9515 Highway 49, Gulfport, MS 39503.
3. August 17, 2011, 9 a.m.-5 p.m., Embassy Suites, 9800 Queensway Boulevard, Myrtle Beach, SC 29572.
4. August 24, 2011, 9 a.m.-5 p.m., Holiday Inn, 137 Automall Circle, Daytona Beach, FL 32124.
5. September 14, 2011, 9 a.m.-5 p.m., Holiday Inn Select, 2001 Cove Boulevard, Panama City, FL 32405.
6. September 21, 2011, 9 a.m.-5 p.m., Hilton Garden Inn, 1 Thurber Street, Warwick, RI 02886.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682-0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of Intent.
The U.S. Army Corps of Engineers, Sacramento District (Corps), will prepare an Environmental Impact Statement (EIS) for the proposed Kennecott Utah Copper Tailings Expansion Project, an expansion of an active commercial mining operation near Magna, Salt Lake County, UT. Kennecott Utah Copper LLC (KUC) has applied for a Department of the Army (DA) permit to fill approximately 721 acres of waters of the United States, including wetlands, to construct the project. The basic project purpose is surface mining. The overall project purpose is to increase tailings storage capacity for future mine life extensions.
Please send written comments to John Urbanic, U.S. Army Corps of Engineers, Sacramento District, 533 West 2600 South, Suite 150, Bountiful, UT 84010.
Questions about the proposed action and EIS can be answered by John Urbanic, (801) 295-8380, extension 11;
KUC has applied for a DA permit under Section 404 of the Clean Water Act to expand their existing tailings impoundment and to construct an additional tailings storage facility (TSF) and related infrastructure on a 1992-acre parcel approximately ten miles west of Salt Lake City near the community of Magna, UT. The proposed action involves two phases that, according to the applicant, would provide the necessary tailings storage capacity to extend the life of the Bingham Canyon Mine (Mine) through 2039. In Phase 1 KUC would continue using the existing North TSF while increasing the height of the North TSF impoundment beyond the currently permitted design. KUC would also construct and begin using a new impoundment, the Northeast TSF, on adjacent KUC property to the east. In Phase 2 KUC would extend tailings deposition from the North TSF onto a portion of the existing South TSF. Ancillary work that would occur includes: the relocation of existing utilities (power, fiber optic, etc.), ditches, secondary or tertiary roads, and a 4-mile long segment of a railroad line; preparation of the foundation and placement of drainage blanket material under the embankment footprint for the Northeast TSF; construction of engineered structures (prior to placing tailings on the South TSF), dikes and ditches for the facilities; and modification of the tailings distribution and return water systems.
Approximately 774 acres of waters of the United States (waters), including wetlands, have been identified on the proposed project site. The area of impacted wetlands includes 488 acres of vegetated saline playa and 76.9 acres of emergent wetlands. Impacted non-wetland waters include 139.8 acres of unvegetated (< 5% vegetative cover) saline playa and 16.1 acres of other jurisdictional waters and drainages. In total, the applicant has applied for a DA permit to fill 565 acres of wetlands and 156 acres of non-wetland waters. In addition, the Corps will be evaluating supplemental delineation information characterizing approximately 200 additional acres of potential waters that may be impacted by ancillary work.
The EIS will include an evaluation of a reasonable range of alternatives. Currently, the following alternatives are expected to be analyzed in detail: (1) The no action alternative (no permit issued) and (2) the applicant's preferred project (proposed action). The no action alternative assumes limited development would occur on the site with all waters of the United States avoided. In addition to the proposed action, the Corps anticipates evaluating additional on-site and off-site alternatives for potential detailed analysis.
The Corps' scoping process for the EIS includes a public involvement program with several opportunities to provide oral and written comments. In addition to public meetings and notifications in the
Potentially significant issues to be analyzed in the EIS include, but are not limited to impacts to waters, hydrology, water supply, water quality, cultural resources, biological resources, traffic and transportation, and air quality.
The Corps is the lead federal agency for preparation of the EIS under the requirements of the National Environmental Policy Act (NEPA). The Corps may invite other Federal, State, local agencies, and tribes to be cooperating agencies.
Other environmental review and consultation requirements for the proposed action include the need for the applicant to obtain water quality certification under Section 401 of the Clean Water Act from the Utah Division of Water Quality. The proposed project will not affect any federally listed threatened or endangered species; however, it may affect state-listed special status species. Once a habitat assessment of the areas has been completed, the Corps will consult with state and Federal wildlife agencies. In addition, the Corps will also be consulting with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act concerning properties listed, or potentially eligible for listing, on the National Register of Historic Places.
Interested parties may register for the Corps' public notice e-mail notification lists at:
Department of the Army—U.S. Army Corps of Engineers, DoD.
Notice of availability.
In September 2009, the Los Angeles District of the U.S. Army Corps of Engineers (Corps) and the Los Angeles Harbor Department published a joint final Environmental Impact Statement/Environmental Impact Report (EIS/EIR), including the Corps' draft general conformity determination (Section 3.2 and Appendix D.7), for the Federal action associated with the San Pedro Waterfront Project (Project) in the Port of Los Angeles, Los Angeles County, California. Comments were received on the final EIS/EIR and included draft general conformity determination until October 29, 2009. A general conformity determination was necessary because Project construction would require Federal action (
The public can request copies of the final general conformity determination document or the ROD from the Corps at the address listed below, or can view or download the final general conformity determination document from the Corps' Web site (
Questions or comments concerning the final general conformity determination or the ROD should be directed to Dr. Spencer D. MacNeil, Chief of the Transportation and Special Projects Branch, Regulatory Division, U.S. Army Corps of Engineers, 2151 Alessandro Drive, Suite 110, Ventura, California 93001, (805) 585-2152.
None
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 (Application), filed on May 6, 2011, and amended on May 26, 2011, by Lake Charles Exports, LLC (LCE), requesting long-term, multi-contract authorization to export up to 15 million metric tons per annum (mmtpa) of domestic natural gas as liquefied natural gas (LNG) for a 25-year period, commencing the earlier of the date of first export or ten years from the date of issuance of the requested authorization. LCE seeks authorization to export LNG from the terminal in Lake Charles, Louisiana (“Lake Charles Terminal”)
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, August 12, 2011.
LCE is a Delaware limited liability company and a jointly-owned subsidiary of BG Group plc (BG) and Southern Union Company (SUG), with its principal place of business in Houston, Texas. BG LNG Services, LLC (BGLS), an affiliate of LCE, is an importer of LNG into the United States. BGLS and Trunkline LNG, a subsidiary of SUG, are jointly developing plans to install liquefaction facilities to enable export of domestically produced LNG at the Lake Charles Terminal.
The Lake Charles Terminal was certificated by the Federal Energy Regulatory Commission (FERC or Commission) in 1977, and original construction was completed in July 1981. In 2001, BGLS entered into a firm terminalling services agreement under which it subscribed all of the capacity of the Lake Charles Terminal to receive, store, and vaporize LNG. In cooperation with BGLS, Trunkline LNG has expanded and enhanced the terminal through the construction of additional storage capacity, additional gas-fired vaporization capacity, an additional marine berth, ambient air vaporization equipment, and natural gas liquids extraction capability. At present, the terminal has a firm sustained sendout capacity of 1.8 billion cubic feet per day (Bcf/d) (13.7 mmtpa) and a peak sendout capacity of 2.1 Bcf/d. The terminal has four LNG storage tanks with a combined capacity of approximately 2.7 million barrels (425,000 cubic meters) of LNG, or approximately 9.0 Bcf of gas. In addition, the terminal's natural gas liquids processing facilities allow the extraction of ethane and other heavier hydrocarbons from the LNG stream.
LCE's affiliate, BGLS, currently holds nine active long-term and blanket authorizations from DOE to import LNG at the Lake Charles Terminal and the LNG terminal at Elba Island, Georgia, including: DOE/FE Order No. 2917 (issued February 17, 2011); DOE/FE Order No. 2756 (issued March 8, 2010); DOE/FE Order No. 2527 (issued August 14, 2008); DOE/FE Order No. 2288 (issued November 17, 2006); DOE/FE Order No. 2285 (issued November 17, 2006); DOE/FE Order No. 2199 (issued May 22, 2006); DOE/FE Order No. 1977-B (issued May 22, 2006); DOE/FE Order No. 2286 (issued November 17, 2006); and DOE/FE Order No. 1932 (issued December 30, 2003).
In the instant Application, as amended, LCE seeks long-term authorization to export up to 15 mmtpa of LNG for a 25-year period, commencing the earlier of the date of first export or ten years from the date of issuance of the requested authorization. LCE seeks authorization to export LNG from the Lake Charles Terminal to: (1) Any country with which the United States currently has, or in the future may enter into, a free trade agreement (FTA) requiring national treatment for trade in natural gas; and (2) any country with which the United States does not have an FTA requiring national treatment for trade in natural gas with which trade is not prohibited by United States law or policy.
Trunkline LNG and BGLS are currently developing plans to: (1) Modify the existing facilities at the Lake Charles Terminal to permit LNG to be loaded from the terminal's storage tanks onto vessels berthed at the existing marine facility; and (2) install liquefaction facilities that would permit gas to be received by pipeline at the terminal and liquefied for subsequent export. The liquefaction and export facilities would be subject to an additional services agreement between Trunkline LNG and BGLS. LCE states that it would purchase LNG produced by the proposed liquefaction facility at the Lake Charles Terminal from BGLS prior to export. LCE notes that any modifications to the Lake Charles Terminal would be subject to FERC approval and that, following the modifications, the Lake Charles Terminal would be bi-directional, and its peak and sustained sendout capabilities will not be affected.
LCE stated in the Application that it will enter into a long-term export contract with BGLS on a date that is closer to the date of first export. LCE also stated in the Application that the export contract would have a 20 year term and that it will purchase LNG from BGLS at the point of export at the Lake Charles Terminal for delivery to markets around the world.
In the Amendment to the Application, filed on May 26, 2011, LCE revised its request by specifying that it seeks authority to export LNG on its own behalf or as agent for BGLS. The Amendment also clarified that LCE intends that its long-term LNG export agreement with BGLS will run for 25 years concurrent with the export authority sought in the original Application. Also in the Amendment, LCE stated that it prefers to take title to the LNG destined for export from BGLS at the point of export and that it seeks a waiver by DOE/FE of the non-binding policy announced in
LCE plans to export natural gas sourced from the Texas and Louisiana producing regions as well as other producing regions in the Lower 48 States.
LCE contends that the authorization would not be inconsistent with the public interest and should be granted by DOE/FE under the individual statutory provisions that apply separately to exporting LNG to FTA and non-FTA countries. LCE asserts that the portion of the Application that seeks authorization to export LNG to FTA countries should be reviewed pursuant to the public interest standard in Section 3(c) of the Natural Gas Act (NGA).
With regard to exports of LNG to non-FTA countries, LCE states that Section 3(a) of the NGA sets forth the general standard for review applicable to such export applications
In this regard, LCE states that the portion of its Application to export domestically produced LNG to non-FTA countries is not inconsistent with the public interest as demonstrated by the following:
First, LCE contends that recoverable natural gas resources in the United States are abundant, cheap and sufficient to meet long-term demand for both domestic consumption and LCE's proposed LNG exports. LCE asserts that recent improvements in natural gas exploration and production technology
Based on an internal analysis of potential exports of domestically produced LNG from various U.S. LNG terminals that could have liquefaction capacity installed, LCE estimated both the impact of the proposed exports and also the effect of other U.S. LNG exports from 2015 through 2035. LCE prepared two scenarios. In a base export case, LCE shows the impact of LNG reaching a total of 6 Bcf/d; in a high (stress) export case, it reaches a total of 12 Bcf/d. LCE asserts that EIA's current estimate of 2,251 trillion cubic feet of technically recoverable dry gas resources in the Lower 48 States indicates that recoverable resources are more than adequate in the long run to meet domestic demand as well as LNG exports as high as 12 Bcf/d. LCE concludes that the natural gas to be exported pursuant to this Application will not be needed to meet U.S. demand, and its permitting would not be inconsistent with the public interest.
Second, LCE states that its analysis shows that the proposed export, as well as the likely level of total LNG exports during the term of the proposed authorization, will not have a significant impact on domestic natural gas prices. LCE states that the surge in shale gas production and recoverable resource estimates has had a bearish effect on domestic natural gas prices over the last two years. LCE considers LNG exports from the United States as an additional demand element in the market. To fully understand the impact of future long-term gas prices, LCE performed internal and external assessments that examined the recoverable resource potential and production costs of natural gas for 2011 through 2035.
Third, LCE contends that the requested authorization will benefit local, regional, and national economies, and is in the public interest. LCE asserts that the development of new resources creates new jobs and new opportunities for American workers and is consistent with President Obama's National Export Initiative signed in 2010.
Fourth, LCE contends that LNG exports can have significant environmental benefits due to the cleaner burning qualities of natural gas, and that an increased supply of natural gas made possible through LNG export can help countries break their dependence on less environmentally friendly fuels.
LCE states that, currently, the Lake Charles Terminal is equipped for and authorized only to receive imports of LNG. LCE further states that Trunkline LNG will file an application with FERC for authorization to modify the existing authorized facilities for exports in accordance with NGA Section 3 and subpart B of part 153 of the Commission's Regulations, 18 CFR Sec. 153.4,
Pursuant to NGA Section 3(a), the portion of the Application seeking authorization to export LNG to countries that have entered into FTAs with the United States calling for national treatment of trade in natural gas is deemed to be in the public interest and, as requested by LCE, shall be granted without modification or delay. A separate order shall be issued to this end.
The balance of the export Application, which seeks authorization to export LNG to non-FTA nations, will be reviewed pursuant to Section 3(c) of the Natural Gas Act, as amended; DOE Delegation Order No. 00-002.00L (Apr. 29, 2011); and DOE Redelegation Order No. 00-002.04E (Apr. 29, 2011). In reviewing this non-FTA portion of the Application, DOE will consider any issues required by law or policy. To the extent determined to be necessary or appropriate, these issues will include the impact of LNG exports associated with this Application, and the cumulative impact of any other application(s) previously approved, on domestic need for the gas proposed to be exported, energy security, and any other issues, including the impact on U.S. gross domestic product, consumers, industry, U.S. balance of trade, jobs creation, as well as 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, as well as any other issues deemed relevant to the Application.
NEPA requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its NEPA responsibilities.
Due to the complexity of the issues raised by the Applicants, interested persons will be provided 60 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, notices of intervention, or motions for additional procedures.
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
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 provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The Application filed by LCE is available for inspection and copying in the Office of Natural Gas Regulatory Activities docket room, Room 3E-042, 1000 Independence Avenue, SW., Washington, DC 20585. The docket room is open between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
Department of Energy (DOE).
Notice of open meeting.
DOE has initiated a Quadrennial Technology Review (DOE-QTR) of its energy technology policies and programs. The DOE-QTR Capstone Workshop is the culmination of the Department's public engagement phase of the review.
8:30 a.m.-5:30 p.m., Wednesday, July 13, 2011.
The meeting will be held in the Washington, DC metro area. Attendance at the meeting is on a first-come, first-served basis, and pre-registration is required. The address of venue will be posted and registration information available at
Asa Hopkins, Office of the Under Secretary for Science at (202) 586-0505, or e-mail
The energy technology development and deployment programs of the Department of Energy include the Advanced Research Projects Agency-Energy (ARPA-E) and the Offices of Electricity Delivery & Energy Reliability, Energy Efficiency & Renewable Energy, Fossil Energy, and Nuclear Energy—a set of programs with an annual collected budget of about $4.3 billion. Additionally, the Department's Office of Science supports basic scientific research programs in materials and chemical sciences, biology, and computational sciences that are highly relevant for the energy technology programs considered within the DOE-Quadrennial Technology Review (QTR). The Department also administers loan guarantees to eligible clean energy projects and provides direct loans to eligible manufacturers of advanced technology vehicles and components.
DOE is undertaking development of a QTR, a component of a government-wide Quadrennial Energy Review as recommended by the President's Council of Advisors on Science & Technology. This Administration's national energy goals are to:
• Reduce energy-related greenhouse gas emissions by 17% by 2020 and 83% by 2050, from a 2005 baseline;
• Supply 80% of America's electricity from clean energy sources by 2035; and
• Support deployment of 1 million electric vehicles (EVs) on the road by 2015.
In a previous
The Department recognizes the many benefits to be derived from public participation for both stakeholders and DOE. Public participation provides a means for DOE to gather a diverse collection of opinions, perspectives, and values from the broadest spectrum of the public, enabling the Department to make more informed decisions. Public participation benefits stakeholders by creating an opportunity to provide input on decisions that affect their communities and our nation.
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3506(c) (2) (a) of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments in consideration of the collection of information are due July 13, 2011.
Comments may be filed either electronically (eFiled) or in paper format, and should refer to Docket No. IC11-521-001. Documents must be prepared in an acceptable filing format and in compliance with Commission submission guidelines at:
Users interested in receiving automatic notification of activity in this docket may do so through eSubscription at
Ellen Brown may be reached by e-mail at
The information collected under the requirements of FERC-521, “Payments for Benefits from Headwater Benefits” (OMB No. 1902-0087), is used by the Commission to implement the statutory provisions of section 10(f) of the Federal Power Act (FPA) (16 U.S.C. 803). The FPA authorizes the Commission to determine headwater benefits received by downstream hydropower project owners. Headwater benefits is the additional energy production possible at a downstream hydropower project resulting from the regulation of river flows by an upstream storage reservoir.
When the Commission completes a study of a river basin, it determines headwater benefits charges that will be apportioned among the various downstream beneficiaries. A headwater benefits charge and the cost incurred by the Commission to complete an evaluation are paid by downstream hydropower project owners. In essence, the owners of non-federal hydropower projects that directly benefit from a headwater improvement must pay an equitable portion of the annual charges for interest, maintenance, and depreciation of the headwater project to the U.S. Treasury. The regulations provide for apportionment of these costs between the headwater project and downstream projects based on downstream energy gains and propose equitable apportionment methodology that can be applied to all rivers basins in which headwater improvements are built. The Commission requires owners of non-federal hydropower projects to file data for determining annual charges as outlined in 18 Code of Federal Regulations (CFR) part 11.
Estimated cost burden to respondents is $8,214 (120 hours/2,080 hours
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) has submitted the information collections described below to the Office of Management and Budget (OMB) for review and an extension of the expiration date for these information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission received one comment in response to an earlier
Comments on the collection of information are due by July 13, 2011.
Address comments on the collection of information to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. Comments to OMB should be filed electronically, c/o
A copy of the comments should also be sent to the Federal Energy Regulatory Commission. Comments may be filed either electronically or in paper format. Those persons filing electronically do not need to make a paper filing. For paper filings, such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 and should refer to Docket Nos. IC11-520-001; IC11-561-001; and IC11-566-001. (If comments apply to only one or two of the collections, indicate the corresponding docket and collection number(s).)
Documents filed electronically via the Internet must be prepared in an acceptable filing format and in compliance with the Federal Energy Regulatory Commission's submission guidelines. Complete filing instructions and acceptable filing formats are available at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the eLibrary link. For user assistance, contact
Ellen Brown may be reached by e-mail at
The supporting statement for the information collections submitted for
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The FERC-520 is divided into two types of applications: Full and abbreviated. The full application, as specified in section 45.8, implements the FPA requirement that it is unlawful for any person to concurrently hold the positions of officer or director of more than one public utility; or a public utility and a bank or financial institution that underwrites or markets public utility securities; or a public utility and an electrical equipment supplier to that public utility unless the Commission has authorized the interlocks to be held. Before assuming an interlocked position, an applicant must demonstrate that neither public nor private interests will be adversely affected by the holding of the position. The full application provides Commission staff with a list of certain information required from the applicant concerning the interlocking positions for which he/she seeks authorization. Information provided includes, but is not limited to, a description of duties, estimated time devoted to the position, and any indebtedness to the public utility.
The abbreviated application, as specified in 18 CFR 45.9 and otherwise known as an informational report, allows an applicant to receive automatic authorization for an interlock position upon receipt of filing with the FERC. The abbreviated application applies only to those individuals who seek authorization as an (1) Officer or director of two or more public utilities where the same holding company owns, directly or indirectly, wholly or in part, the other public utility; (2) an officer or director of two public utilities, if one utility is owned, wholly or in part, by the other; or (3) an officer or director of more than one public utility, if such person is already authorized under Part 45 to hold different positions where the interlock involves affiliated public utilities. Information required is on a much smaller scale than that which is required for the full application.
Pursuant to 18 CFR 45.5, in the event that an applicant resigns or withdraws from all Commission-authorized interlocked positions within a corporate structure or is not re-elected or re-appointed to any interlocked positions within that corporate structure, FERC requires that the applicant submit a notice of change within 30 days from the date of change.
The information the Commission collects with Form 561 (“Annual Report of Interlocking Positions”) responds to the FPA requirements for annual reporting of similar types of positions public utility officers and directors hold with financial institutions, insurance companies, utility equipment and fuel providers, and with any of an electric utility's twenty largest purchasers of electric energy. The FPA specifically defines most of the information elements in the Form 561, including the information that must be filed, the required filers, the directive to make the information available to the public, and the filing deadline. The Commission determined administrative aspects of the Form 561 such as the filing format and instructions for filling out the form. The information collected by the Commission through the Form 561 is used to implement the FPA requirement that those who are authorized to hold interlocked directorates annually disclose all the interlocked positions they held the prior year. The Form 561 data identifies persons holding interlocking positions between public utilities and other entities, allows the Commission to review these and permits identification of possible conflicts of interest.
Finally, the FERC-566, “Annual Report of a Utility's Twenty Largest Purchasers,” implements FPA requirements that each public utility annually publish a list of the purchasers of the twenty largest annual amounts of electric energy sold by such public utility during any one of three previous calendar years. Similar to the statutory detail in the FPA for the Form 561, the FPA identifies who must file the FERC-566 report and sets the filing deadline. The FPA specifies that those entities required to report who have a holding company system can calculate their total volumes of energy sold by including the amounts sold by utilities within their holding company system. The FERC details in its regulations special rules about the information to be provided in the FERC-566 report. For example, FERC allows required filers to file estimates of volumes based on actual information available to them if actual volumes are not available by the statutory due date. However, the FERC also requires revisions of those filed estimates with final numbers by March 1st. The public disclosure of this information provides officers and directors with the information necessary to determine whether any of the entities with whom they are related are any of the largest twenty purchasers of the public utility with which they are affiliated.
Together, these data collections provide views into complex electric corporate activities. They serve to safeguard public and private interests, as the FPA requires, by disclosing business relationships to both the public and the Commission for analyses. The public can file a complaint with the Commission if disclosures made under these data collections provide evidence of corporate behavior that violates Commission policy.
The Commission can use its enforcement authority when violations and omissions of FPA requirements occur.
5.
In accordance with OMB regulations in 5 CFR 1320.8(d), the Commission's Notice to renew its OMB approval of FERC-520, Form 561 and FERC-566 information collections was published in the
In its comments, EEI refers to various sections of the preamble to Order No. 446 as support for its request that automatic authorizations of certain “informational” applications would not adversely affect the public interest. EEI believes automatic reauthorizations would reduce both the reporting burden of filers and the processing burden on FERC staff resources.
In its comments, EEI also points out a calculation error in FERC's burden estimate. The FERC estimates the cost of preparing the FERC-566 as $68 per respondent per year, based on an estimated 6 hours per response, 434 respondents filing once per year, and an average annual staff salary of $142,372. However, using the stated information, the average cost per response would be $411 (
As a separate matter, FERC has made the arithmetic correction to the burden calculation in the March 2011 notice. However, FERC will not change the number of hours per response based on the information EEI provides. The EEI comment clearly states that it was only one of its members who has noted its filing time is 2 hours longer than the 6 hours FERC estimates it takes filers to comply with the requirements of FERC-566, on average. Because the estimate is an average, it is to be expected that some filers will have a higher reporting burden while others will have a lower one. Therefore, FERC does not see a reason to change the FERC-566 average completion time of 6 hours.
6.
FERC estimates for the annual burden follow.
Annual cost estimates for these collections follow.
7.
The number of informational applications has increased steadily from 87 in 2004 to 335 in 2010. The Commission began to separate the FERC-520 filings by type of application in its OMB clearance estimates in 2008 because the number of each type of application filed had been changing significantly. Breaking the data out by type of filing allows these changes to be easily seen. The last OMB clearance package divided the FERC-520 filings only into two categories: full and informational filings. Decreases in the number of full and informational applications has necessitated the separate tracking and reporting of three types of possible applications and the burden hours each imposes. Therefore, this OMB clearance package adds Notice of Change filings, further breaking down the categories of FERC-520 to capture, convey and begin to analyze all types of FERC-520s.
The decrease in the number of FERC-520 applications may be due to directors retaining their positions longer because of the slow economy. The number of FERC-566 filings increased by 44% because in December 2007 FERC sent out notices to those who were expected to file a FERC-566 but did not during previous reporting years.
There is a change in the annual cost estimates since the last submission in 2008 due mainly to a decrease in the number of FERC-520 filers. However, the per-hour cost estimate for each collection has increased since 2008 because the Commission is using an updated salary estimate.
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collections 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 collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Take notice that the following application has been filed with the Commission and is available for public inspection:
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Comments, motions to intervene, and protests may be filed electronically via the Internet.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Fred Meyer Stores, Inc.'s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 13, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of TrueLight Commodities, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 27, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of TrueLight Energy, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability, is June 27, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Environmental Protection Agency (EPA).
Notice; Request for Public Comment.
Notice is hereby given that a proposed prospective purchaser agreement amendment (“PPA Amendment”) associated with the Fischer & Porter Superfund Site in Warminster Township, Bucks County, Pennsylvania was executed by the Environmental Protection Agency (“EPA”) and the Department of Justice and is now subject to public comment, after which the United States may modify or withdraw its consent if comments received disclose facts or considerations which indicate that the PPA Amendment is inappropriate, improper, or inadequate. The PPA Amendment would resolve certain potential EPA claims under Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, against Blue Marlin Associates (“Purchasers”). In lieu of financial consideration, in exchange for EPA's covenant not to sue for response costs incurred at the Site, the settlement would require the Purchasers to, among other things, conduct a vapor intrusion study on their existing building located on the parcel adjacent to the property under consideration in the PPA Amendment, and, if any unacceptable risks from vapor intrusion were shown to be present, to take appropriate remedial measures as approved by EPA.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the PPA Amendment. The Agency's response to any comments received will be available for public inspection at the U.S. Environmental Protection Agency, Region III Office, 1650 Arch Street, Philadelphia PA 19103.
Comments must be submitted on or before July 13, 2011.
Submit your comments, identified by Docket ID No. EPA-R03-SFUND-2011-0508, by one of the following methods:
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Additionally, the PPA Amendment and additional background information are available for public inspection at the U.S. Environmental Protection Agency, Region III Office, 1650 Arch Street, Philadelphia, PA 19103. A copy of the PPA Amendment may be obtained from Lydia Guy (3RC00), Regional Hearing Clerk, U.S. Environmental Protection Agency, Region III Office, 1650 Arch Street, Philadelphia, PA 19103, or
Elizabeth B. Lukens (3RC44), Senior Assistant Regional Counsel, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103,
This notice is given in accordance with the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as Amended by the Superfund Amendments and Reauthorization Act of 1986, (“CERCLA”), 42 U.S.C. 9601-9675.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting on Wednesday, June 29, 2011 in the Commission Meeting Room, from 1 p.m. to 4 p.m. at the Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
June 29, 2011.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Walter Johnston, Chief, Electromagnetic Compatibility Division, Office of Engineering and Technology 202-418-0807;
Technical Advisory Council members have been prioritizing and further developing technology issues discussed at the initial meeting on November 4, 2011. The Technical Advisory Council members will discuss this work, outline progress to date and discuss possible further work. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. Meetings are also broadcast live with open captioning over the internet from the FCC Live Web page at
Please allow at least five days advance notice; last minute requests will be accepted, but may be impossible to fill.
The following item has been adopted by the Commission and deleted from the list of Agenda items scheduled for consideration at the Thursday, June 9, 2011, Open Meeting and previously listed in the Commission's Notice of June 2, 2011.
The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally, and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in the 17.3-17.8 GHz Frequency Band (IB Docket No. 06-123)
The Commission will consider a Second Report and Order adopting technical rules to mitigate space path interference between the 17/24 GHz Broadcasting-Satellite Service (BSS) space stations and current and future Direct Broadcasting Service (DBS) space stations that operate in the same frequency band.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that the Federal Deposit Insurance Corporation's Board of Directors will meet in open session at 10 a.m. on Tuesday, June 14, 2011, to consider the following matters:
The meeting will be held in the Board Room on the sixth floorof the FDIC Building located at 550 17th Street, NW.,Washington, DC.
This Board meeting will be Webcast live via the Internet and subsequently made available on-demand approximately one week after the event. Visit
The FDIC will provide attendees with auxiliary aids (
Requests for further information concerning the meeting may be directed to Ms. Valerie J. Best, Assistant Executive Secretary of the Corporation, at 202-898-7043.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 8, 2011.
A. Federal Reserve Bank of Philadelphia (Michael E. Collins, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521:
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B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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Pursuant to Public Law 92-463, notice is hereby given of a Web-based meeting of the Substance Abuse and Mental Health Services Administration's (SAMHSA) Advisory Committee for Women's Services on June 24 from 3 p.m. to 5 p.m. The meeting is open to the public and will include dialogue on the way that SAMHSA's strategic Initiatives address behavioral health services to women and girls.
ACWS members, invited presenters, and members of the public will participate in this meeting through audio/Internet-based connection. On-site attendance by the public will be limited to space available. To obtain call-in numbers and access codes, to make arrangements to attend on-site, or to request special accommodations for persons with disabilities, please communicate with Ms. Nevine Gahed, Designated Federal Official (see contact information below) or register at the SAMHSA Committee's Web site at
Substantive meeting information and a roster of Committee members may be obtained either by accessing the SAMHSA Committee's Web site at
Science and Technology Directorate, DHS.
60-day notice and request for comment.
The Department of Homeland Security (DHS), Science & Technology (S&T) Directorate invites the general public to comment on data collection forms for the External S&T Collaboration Site (E-STCS) program. E-STCS is responsible for providing a collaborative environment for practitioners from first responders, academia, organizations, law enforcement, and the private sector. This clearinghouse will enable its users to share information, best practices and lessons learned within a secure collaborative environment. Registration information will be collected only when needed for users who require further access beyond the E-STCS landing page. In order for a user to access this clearinghouse, he/she must complete a Registration Form to establish a user account. Initially, this will be accomplished by the sponsor contacting the user for their information. As the site matures, the information will be collected via an online Web form. The information collected is used by the DHS S&T E-STCS program to determine the authenticity and suitability of the practitioner requesting access. Once approved, users will utilize the collaborative environment to exchange information, network with other users, as well as post blogs and comments.
The DHS invites interested persons to comment on the following form and instructions (hereinafter “Forms Package”) for the S&T E-STCS: (1) Request an E-STCS Account (DHS Form 10074). Interested persons may receive a copy of the Forms Package by
Comments are encouraged and will be accepted until August 12, 2011.
Interested persons are invited to submit comments, identified by docket number DHS-2011-0041, by
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DHS S&T PRA Coordinator Daniel Purcell (202) 254-5664 (Not a toll free number).
The information will be collected via the DHS S&T E-STCS secure Web site at
The Department is committed to improving its information collection and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Science and Technology Directorate, DHS.
30-day Notice and request for comment.
The Department of Homeland Security (DHS) invites the general public to comment on the data collection form for the DHS Science & Technology (S&T) First Responders Community of Practice (FRCoP): User Registration Page (DHS Form 10059 (9/09)). The FRCoP web based tool collects profile information from first responders and select authorized non-first responder users to facilitate networking and formation of online communities. All users are required to authenticate prior to entering the site. In addition, the tool provides members the capability to create wikis, discussion threads, blogs, documents,
Comments are encouraged and will be accepted until July 13, 2011.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to: Desk Officer for the Department of Homeland Security, Science and Technology Directorate, and sent via electronic mail to
DHS S&T PRA Coordinator Daniel Purcell (202) 254-5664 (Not a toll-free number).
DHS S&T currently has approval to collect information utilizing the User Registration Form until July 31, 2011 with OMB approval number 1640-0016. The User Registration Form will be available on the First Responders Community of Practice Web site found at [
The Department is committed to improving its information collection and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Privacy Office, DHS.
Notice of Update and Reissuance of Privacy Act System of Records.
The Department of Homeland Security is updating and re-publishing the previously established Privacy Act system of records notice published in the
Submit comments on or before July 13, 2011.
You may submit comments, identified by DHS-2011-0048 by one of the following methods:
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• Docket: For access to the docket to read background documents or comments received go to
For general questions, please contact: Donald K. Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security (DHS) implements U.S. immigration law and policy through the U.S. Citizenship and Immigration Service's (USCIS) processing and adjudication of applications and petitions submitted for citizenship,
The Alien File (A-File), Index, and National File Tracking System of Records is the official record system that contains information regarding transactions involving an individual as he/she passes through the U.S. immigration and inspection process. The DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking System of Records contains personally identifiable information (PII) such as the individual's name, Alien Registration Number, receipt file number, date and place of birth, date and port of entry, as well as the location of each official A-File. It may also contain other personal identifiers such as an individual's Social Security Number (SSN), if the individual has one and it is in the A-File. Some records contained in the DHS/USCIS-ICE-CBP-001 A-Files are derived from separate systems of record, in which case the system of records notice pertaining to the originating system would govern the treatment of those records. Previously, the legacy agency Immigration and Naturalization Services (INS) collected and maintained information concerning all of these immigration and inspection interactions. Since the formation of DHS, however, immigration responsibilities have been divided among USCIS, ICE, and CBP. While USCIS is the custodian of the A-File, all three components create and use A-Files, hence this joint System of Records Notice.
A notice detailing this system of records was last published in the
DHS is updating the DHS/USCIS-001 Alien File and Central Index System of Records to be renamed DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking System of Records to include the following substantive changes: (1) The addition of thirteen routine uses and updates to other routine uses to allow DHS to share information from the system; (2) an update to the classification level of the system and to provide notice that the system may contain classified records; and (3) a proposed exemption from certain provisions of the Privacy Act for records that are classified.
DHS is renaming this system in order to provide a better description of the types of records that are maintained in this system of records. These records may be maintained in paper or electronic format, but the uses and protections outlined in the notice do not change because of the format or the specific IT system in which they are maintained. DHS has provided more explicit notice on the specific IT systems where these types of records may exist under “Location.”
Below is a summary of the thirteen routine use additions or modifications with the letter in parentheses corresponding to the routine use impacted:
(A) Updated: To include DHS as an additional party for litigation in the release of information to the Department of Justice (DOJ);
(D) New: To an agency, organization, or individuals for the purpose of performing audits or oversight as authorized by law;
(F) Updated: To include interns and students working on assignments for DHS;
(I) New: To courts for immigration, civil, or criminal proceedings;
(K) New: To DOJ or other federal agencies when conducting litigation to assist in development of the agency's legal and/or policy position;
(L) Updated: To include sharing with international organizations about an alien or an enforcement operation with transnational implications;
(P) New: To a government organization in regards to hiring or retention of an individual where failure to disclose the information on an individual is likely to create a security risk;
(Q) Updated: Rewritten to provide better clarification on when information is released to current or prospective employers;
(T) New: To Congress during the private immigration relief legislation process;
(U) Updated: To government agencies to assist in the collection of debts;
(V) Updated: To third parties posting immigration bonds;
(BB) New: To third parties when an individual will be released from DHS custody to assist with arranging housing or medical care;
(CC) New: To domestic government agencies when an individual will be released from DHS custody and there are concerns related to health and safety;
(DD) New: To foreign governments to coordinate removal of individuals;
(EE) New: To law enforcement agencies for de-conflicting investigations and other coordination of law enforcement activities;
(FF) New: To custodial agencies to place an immigration detainer on an individual or to facilitate the transfer of custody of the individual from DHS to that agency;
(GG) New: To government agencies to confirm the location, custodial status, removal or voluntary departure of an alien in order to facilitate the custody, care and/or legal rights of the individual's minor children;
(HH) New: To government agencies to assist in making determinations of redress;
(II) New: To share information from the system on a case-by-case basis with the news media or public.
The latter sharing, to the news media or public, would be done only with the approval of the DHS Chief Privacy Officer, who will weigh the public interest in receiving the information against the privacy interests of the individual to whom the information pertains, when the disclosure is necessary to preserve confidence in the integrity of DHS or demonstrate the accountability of DHS personnel.
Pursuant to Pub. L. No. 107-296, Homeland Security Act of 2002, Section 804 Savings Provisions, and by reference 28 CFR Appendix C to Part 16, Subpart E, pertaining to the JUSTICE/INS-001A A-File and CIS, (66 FR 46812) system of records notice, the records and information in this system are exempt from 5 U.S.C. 552a (c)(3) and (4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), and (g) of the Privacy Act. These exemptions apply only to the extent that records in the system are subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
Consistent with DHS's statutory information sharing mission, information stored in the DHS/USCIS-ICE-CBP—001 Alien File, Index, and National File Tracking System of Records may be shared with other DHS components, as well as appropriate federal, state, local, tribal, foreign, or international government agencies. This sharing will take place only after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the purposes of this system of records and the routine uses set forth in this system of records notice.
The Privacy Act embodies Fair Information Principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors, and aliens. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this revised system of records to the Office of Management and Budget and to the Congress.
DHS/USCIS-ICE-CBP—001.
Department of Homeland Security U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, Customs and Border Protection—001 Alien File, Index, and National File Tracking System of Records.
Unclassified, sensitive, for official use only, and classified.
Alien Files (A-Files) are maintained in electronic and paper format throughout DHS. Digitized A-Files are located in the Enterprise Document Management System (EDMS). The Central Index System (CIS) maintains an index of the key personally identifiable information (PII) in the A-File which can be used to retrieve additional information through such applications as Enterprise Citizenship and Immigrations Services Centralized Operational Repository (eCISCOR), the Person Centric Query Service (PCQS) and the Micorfilm Digitization Application System (MiDAS). The National File Tracking System (NFTS) provides a tracking system of where the A-Files are physically located, including whether the file has been digitized.
The databases maintaining the above information are located within the DHS data center in the Washington, D.C. metropolitan area as well as throughout the country. Computer terminals providing electronic access are located at U.S. Citizenship and Immigration Services (USCIS) sites at Headquarters and in the Field throughout the United States and at appropriate facilities under the jurisdiction of the U.S. Department of Homeland Security (DHS) and other locations at which officers of DHS component agencies may be posted or operate to facilitate DHS's mission of homeland security. Hard copies of the A-Files are primarily located at the records centers in Lee Summit, Missouri; Suitland, Maryland; San Bruno, California; Seattle, Washington; and Dayton, Ohio. Hard copies may also be located at Headquarters, Regional, District, and other USCIS file control offices in the United States and foreign countries as detailed on the agency's Web site,
Categories of individuals covered by this system include:
• Lawful Permanent Residents;
• Naturalized United States Citizens;
• United States Citizens when petitioning for benefits under the Immigration and Nationality Act (INA) on behalf of another individual;
• Individuals who received or petition for benefits under the INA;
• Individuals who are subject to the enforcement provisions of the INA;
• Individuals who are subject to the INA and:
○ Are under investigation by DHS for possible national security threats or threats to the public safety,
○ Were investigated by the DHS in the past,
○ Are suspected of violating immigration-related criminal or civil provisions of treaties, statutes, regulations, Executive Orders, and Presidential proclamations administered by DHS, or
○ Are witnesses and informants having knowledge of such violations;
• Relatives and associates of those individuals list above who are subject to the INA;
• Individuals who have renounced their U.S. Citizenship; or
• Preparers, Attorneys, and Representatives who assist individuals during benefit and enforcement proceedings under the INA.
Categories of records in this system include:
A. The hardcopy paper A-File, which contains the official record material about each individual for whom DHS has created a record under the Immigration and Nationality Act such as: Naturalization certificates; various documents and attachments (
• Alien Registration Number(s) (A-Numbers);
• Receipt file number(s);
• Full name and any aliases used;
• Physical and mailing addresses;
• Phone numbers and email addresses;
• Social Security Number;
• Date of birth;
• Place of birth (city, state, and country);
• Countries of citizenship;
• Gender;
• Physical characteristics (height, weight, race, eye and hair color, photographs, fingerprints);
• Government-issued identification information (
○ Document type,
○ Issuing organization,
○ Document number, and
○ Expiration date;
• Military membership;
• Arrival/Departure information (record number, expiration date, class of admission, etc.);
• FBI Identification Number;
• Fingerprint Identification Number;
• Immigration enforcement history, including arrests and charges, immigration proceedings and appeals, and dispositions including removals or voluntary departures;
• Immigration status;
• Family history;
• Travel history;
• Education history;
• Employment history;
• Criminal history;
• Professional accreditation information;
• Medical information relevant to an individual's application for benefits under the Immigration and Nationality Act before the Department or the immigration court, an individual's removability from and/or admissibility to the United States, or an individual's competency before the immigration court;
• Specific benefit eligibility information as required by the benefit being sought; and
• Video or transcript of immigration interview.
B. EDMS maintains the electronic copy of the A-File (same information as above with the exception of material that cannot be scanned such as cassette tapes, CDs, or DVDs) if it was scanned from the paper file.
C. CIS contains information on those individuals who during their interactions with DHS have been assigned an A-Number. The system contains biographic information on those individuals allowing DHS employees to quickly review the individual's immigration status. The information in the system can then be used to retrieve additional information on the individual from other systems. The information in the system can be used to request the hard copy A-File from the DHS File Control Office that has custody of the file. Specific data elements may include:
• A-Number(s);
• Full name and any aliases used;
• Social Security Number;
• Date of birth;
• Place of birth (city, state, and country);
• Country of citizenship;
• Gender;
• Government issued identification information (
○ Document type;
○ Issuing organization;
○ Document number; and
○ Expiration date;
• Arrival/Departure information (record number, expiration date, class of admission etc.);
• Immigration status;
• Father and Mother's first name;
• FBI Identification Number;
• Fingerprint Identification Number;
• Immigration enforcement history, including arrests and charges, immigration proceedings and appeals, and dispositions including removals or voluntary departures; and
• File Control Office location of the paper or electronic A-File.
D. NFTS contains the location of the A-File to a more detailed level within the DHS File Control Office. Specific data elements include:
• A-Number(s);
• Receipt File Number; and
• Location of the paper or electronic A-File and Receipt File at and within the DHS File Control Office, as well as the history of who has maintained the A-File, including the component, section and employee.
Authority for maintaining this system is in Sections 103 and 290 of the INA, as amended (8 U.S.C. 1103 and 1360), and the regulations issued pursuant thereto; and Section 451 of the Homeland Security Act of 2002 (Pub. L. 107-296).
The purpose of this system of records is to carry out the provision of benefits under and the enforcement of the INA and related statutes. A-Files, EDMS, CIS, and NFTS are used primarily by DHS employees for immigration benefits processing, protection of national security, and administering and enforcing immigration and nationality laws and related statutes.
The purpose of the A-File is to document an individual's benefits and enforcement transactions as he/she passes through the U.S. immigration and inspection process.
The purpose of CIS is to provide a searchable central index of A-Files and to support the location and transfer of A-Files among DHS personnel and offices as needed in support of immigration benefits and enforcement transactions.
The purpose of NFTS is to accurately account for the specific physical location of A-Files and Receipt Files within a DHS File Control Office, and to track the request and transfer of all A-Files and Receipt Files.
These records assist the Department with processing applications for benefits under applicable immigration laws; detecting violations of these laws; supporting the referral of such violations for prosecution or other appropriate enforcement action; supporting law enforcement efforts and the inspection process; and supporting protection of the United States borders.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3).
A. To the Department of Justice (including United States Attorneys' Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, organizations, and individuals when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) or harm to the individuals who rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, interns, trainees, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To appropriate federal, state, tribal, territorial, local, international, or foreign law enforcement agencies or other appropriate authorities charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To clerks and judges of courts exercising naturalization jurisdiction for the purpose of filing petitions for naturalization and to enable such courts to determine eligibility for naturalization or grounds for revocation of naturalization.
I. To courts, magistrates, administrative tribunals, opposing counsel, parties, and witnesses, in the course of immigration, civil, or criminal proceedings before a court or adjudicative body when:
1. DHS or any component thereof; or
2. Any employee of DHS in his or her official capacity; or
3. Any employee of DHS in his or her individual capacity where the agency has agreed to represent the employee; or
4. The United States, where DHS determines that litigation is likely to affect DHS or any of its components;
Is a party to litigation or has an interest in such litigation, and DHS determines that use of such records is relevant and necessary to the litigation, and that in each case, DHS determines that disclosure of the information to the recipient is a use of the information that is compatible with the purpose for which it was collected.
J. To an attorney or representative (as defined in 8 CFR 1.1(j)) who is acting on behalf of an individual covered by this system of records in connection with any proceeding before USCIS, ICE, or CBP or the Executive Office for Immigration Review.
K. To the Department of Justice (including United States Attorneys' Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, where necessary to assist in the development of such agency's legal and/or policy position.
L. To the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act, and all other immigration and nationality laws including treaties and reciprocal agreements; or when the Department of State requires information to consider and/or provide an informed response to a request for information from a foreign, international, or intergovernmental agency, authority, or organization about an alien or an enforcement operation with transnational implications.
M. To appropriate federal, state, local, tribal, territorial, or foreign governments, as well as to other individuals and organizations during the course of an investigation by DHS or the processing of a matter under DHS' jurisdiction, or during a proceeding within the purview of the immigration and nationality laws, when DHS deems that such disclosure is necessary to carry out its functions and statutory mandates to elicit information required by DHS to carry out its functions and statutory mandates.
N. To an appropriate federal, state, tribal, territorial, local, or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence and the disclosure is
O. To an appropriate federal, state, local, tribal, territorial, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit.
P. To an appropriate federal, state, local, tribal, territorial, foreign, or international agency, if DHS determines (1) The information is relevant and necessary to that agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, and (2) failure to disclose the information is likely to create a risk to government facilities, equipment, or personnel; sensitive information; critical infrastructure; or the public safety.
Q. To an individual's current employer to the extent necessary to determine employment eligibility or to a prospective employer or government agency to verify an individual is eligible for a government-issued credential that is a condition of employment.
R. To a former employee of DHS, in accordance with applicable regulations, for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
S. To the Office of Management and Budget in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in the Circular.
T. To the U.S. Senate Committee on the Judiciary or the U.S. House of Representatives Committee on the Judiciary when necessary to inform members of Congress about an alien who is being considered for private immigration relief.
U. To a federal, state, tribal, or local government agency and/or to domestic courts to assist such agencies in collecting the repayment of loans, or fraudulently or erroneously secured benefits, grants, or other debts owed to them or to the United States Government, or to obtain information that may assist DHS in collecting debts owed to the United States Government;
V. To an individual or entity seeking to post or arrange, or who has already posted or arranged, an immigration bond for an alien to aid the individual or entity in (1) Identifying the location of the alien, or (2) posting the bond, obtaining payments related to the bond, or conducting other administrative or financial management activities related to the bond.
W. To a coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).
X. Consistent with the requirements of the INA, to the Department of Health and Human Services (HHS), the Centers for Disease Control and Prevention (CDC), or to any state or local health authorities, to:
1. Provide proper medical oversight of DHS-designated civil surgeons who perform medical examinations of both arriving aliens and of those requesting status as a lawful permanent resident; and
2. Ensure that all health issues potentially affecting public health and safety in the United States are being or have been, adequately addressed.
Y. To a federal, state, local, tribal, or territorial government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law.
Z. To the Social Security Administration (SSA) for the purpose of issuing a SSN and card to an alien who has made a request for a SSN as part of the immigration process and in accordance with any related agreements in effect between the SSA, DHS and the Department of State entered into pursuant to 20 CFR 422.103(b)(3); 422.103(c); and 422.106(a), or other relevant laws and regulations.
AA. To federal and foreign government intelligence or counterterrorism agencies or components where DHS becomes aware of an indication of a threat or potential threat to national or international security, or where such use is to conduct national intelligence and security investigations or assist in anti-terrorism efforts.
BB. To third parties to facilitate placement or release of an individual (
CC. To an appropriate domestic government agency or other appropriate authority for the purpose of providing information about an individual who has been or is about to be released from DHS custody who, due to a condition such as mental illness, may pose a health or safety risk to himself/herself or to the community. ICE will only disclose information about the individual that is relevant to the health or safety risk they may pose and/or the means to mitigate that risk (
DD. To foreign governments for the purpose of coordinating and conducting the removal of individuals to other nations under the INA; and to international, foreign, and intergovernmental agencies, authorities, and organizations in accordance with law and formal or informal international arrangements.
EE. To a federal, state, local, territorial, tribal, international, or foreign criminal, civil, or regulatory law enforcement authority when the information is necessary for collaboration, coordination and de-confliction of investigative matters, prosecutions, and/or other law enforcement actions to avoid duplicative or disruptive efforts and to ensure the safety of law enforcement officers who may be working on related law enforcement matters.
FF. To the DOJ Federal Bureau of Prisons and other federal, state, local, territorial, tribal and foreign law enforcement or custodial agencies for the purpose of placing an immigration detainer on an individual in that agency's custody, or to facilitate the transfer of custody of an individual from DHS to the other agency. This will include the transfer of information about unaccompanied minor children to HHS to facilitate the custodial transfer of such children from DHS to HHS.
GG. To federal, state, local, tribal, territorial, or foreign governmental or quasi-governmental agencies or courts to confirm the location, custodial status, removal or voluntary departure of an alien from the United States, in order to facilitate the recipients' exercise of responsibilities pertaining to the custody, care, or legal rights (including issuance of a U.S. passport) of the removed individual's minor children, or the adjudication or collection of child
HH. To a federal, state, tribal, territorial, local, international, or foreign government agency or entity for the purpose of consulting with that agency or entity: (1) To assist in making a determination regarding redress for an individual in connection with the operations of a DHS component or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.
II. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on paper, magnetic disc, tape, CD-ROM, DVD, and other digital media.
Digitized A-Files maintained in EDMS can be searched and retrieved by any of the following fields alone or in any combination:
• A-Number;
• Last name;
• First name;
• Middle name;
• Aliases;
• Date of birth;
• Country of birth;
• Gender; and
• Through a full text-based search of records contained in the digitized A-File (based on optical character recognition of the scanned images).
The location of the paper record from which the digitized A-Files was produced can be searched in CIS using the following data:
• A-Number; or
• Full name; or
• Alias; or
• Sounds-like name with or without date of birth; or
• Certificate of Citizenship or Naturalization Certificate number; or
• Driver's License Number; or
• FBI Identification Number; or
• Fingerprint Identification Number; or
• I-94 admission number; or
• Passport number; or
• Social Security Number; or
• Travel document number.
The location of the paper or digitized record A-Files and Receipt Files can be searched in NFTS using the following data:
• A-Number; or
• Receipt File Number.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict physical and technical controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the hard copy records and computer systems containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The A-File records are permanent whether hard copy or electronic. A-Files are transferred to the custody of the National Archives 100 years after the individual's date of birth. Newly-eligible files are transferred to the National Archives every five years. When a paper A-File is digitized, the digitized A-File maintained in EDMS becomes the official record and maintains the same retention schedule as the original paper A-File. The hard copy files are sent to the records center once the records have been digitized.
CIS records are permanently retained on-site because they are the index of where the physical A-File is and whether it has been transferred to the National Archives.
NFTS records are temporary and deleted when they are no longer needed for agency business. The records exist only as a reference to a physical or digital file, and exist for as long as the referenced file exists. NFTS records associated with an A-File will be retained on a permanent basis even after the A-File has been retired to NARA to retain accurate recordkeeping. Receipt Files with a shorter retention period will have the associated NFTS record destroyed or deleted once the file has been destroyed.
The DHS system manager is the Chief, Records Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue, NW., Washington, DC 20529.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it contains classified and sensitive unclassified information related to intelligence, counterterrorism, homeland security, and law enforcement programs. These exemptions apply only to the extent that records in the system are subject to exemption. However, USCIS will consider individual requests to determine whether or not information may be released. Individuals must request access to their information by submitting a Freedom of Information (FOIA) or Privacy Act request to USCIS in writing clearly marked “Privacy Act Request” or “FOIA Request” to the following address: National Records Center, U.S. Citizenship and Immigration Services, FOIA/PA Office, P.O. Box 64064-8010, Lee's Summit, MO 64064-8010.
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, which permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief FOIA Officer,
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information, USCIS may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
Basic information contained in DHS records is supplied by individuals on Department of State and DHS applications and forms. Other information comes from inquiries or complaints from members of the general public and members of Congress; referrals of inquiries or complaints directed to the President or Secretary of Homeland Security; reports of investigations, sworn statements, correspondence, official reports, memoranda, and written referrals from other entities, including federal, state, and local governments, various courts and regulatory agencies, foreign government agencies and international organizations.
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (c)(4): (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
Coast Guard, DHS.
Committee Management; Notice of Committee Establishment.
The Secretary of Homeland Security has determined that the establishment of the Chemical Transportation Advisory Committee (CTAC) is necessary and in the public interest in connection with the performance of duties of the U. S. Coast Guard.
If you desire to submit comments on this action, they must be submitted by July 13, 2011. Comments must be identified by (USCG-2011-0225) and may be submitted by using one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on the establishment of the CTAC, call or e-mail LT Sean Peterson, Commandant (CG-5223), Attention CTAC, U.S. Coast Guard, 2100 Second St., SW. STOP 7126, Washington, DC 20593-7126;
All comments received will be posted without change to
If you submit a comment, please include the docket number for this notice (USCG-2011-0225), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
For the reasons set forth below, the Secretary of Homeland Security has determined that the establishment of the CTAC is necessary and in the public interest. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
The CTAC is being established in accordance with the provisions of the Federal Advisory Committee Act (FACA) 5 U.S.C. App. (Pub. L. 92-463). The CTAC will act in an advisory capacity to the Secretary of the Department of Homeland Security through the Commandant of the Coast Guard and the Deputy Commandant for Operations on matters concerning the safe and secure marine transportation of hazardous materials in bulk. The CTAC will be responsive to specific assignments and may conduct studies, inquiries, workshops, and seminars as the Commandant may authorize or direct. The Committee's unique industry perspective will provide critical support to the Coast Guard's efforts to ensure the safety of the U.S. merchant marine. This information would otherwise have to be drawn from the broad population involved in marine chemical transportation. There is no other current entity which can provide the level of technical expertise and experience that is afforded by this advisory committee.
CTAC will consist of not more than twenty-five (25) members who are appointed and serve at the pleasure of the Secretary of Homeland Security. All members must represent one of the following special groups associated with marine transportation of hazardous materials in bulk: chemical manufacturing companies, companies that handle or transport chemicals in the marine environment, vessel design and construction companies, marine safety or security companies and marine environmental protection groups. Members will be chosen to assure a balanced representation from these special groups. Members are appointed to represent the interest of their respective authority, association, and/or organization and are not Special Government Employees as defined in Title 18, United States Code, section 202(a).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Dakota (FEMA-1984-DR), dated May 13, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of South Dakota is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 13, 2011.
Stanley County for Public Assistance, including direct Federal assistance.
Clay, Union, and Yankton Counties for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Alabama (FEMA-3319-EM), dated April 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective May 31, 2011.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Iowa (FEMA-1977-DR), dated May 5, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated May 5, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Iowa resulting from severe storms, tornadoes, and straight-line winds during the period of April 9-10, 2011, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael R. Scott, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Iowa have been designated as adversely affected by this major disaster:
Buena Vista, Cherokee, Ida, Monona, Pocahontas, and Sac Counties for Public Assistance.
All counties within the State of Iowa are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Missouri (FEMA-1980-DR), dated May 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Missouri is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 9, 2011.
Dunklin, Pemiscot, Phelps, and St. Francois Counties for Individual Assistance.
Bollinger and Reynolds Counties for Individual Assistance and Public Assistance, including direct Federal assistance.
Butler, Howell, McDonald, Scott, Stoddard, and Taney Counties for Public Assistance, including direct Federal assistance (already designated for Individual Assistance).
Iron, Madison, Perry, Ste. Genevieve and Wayne Counties for Public Assistance, including direct Federal assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Alabama (FEMA-1971-DR), dated April 28, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Alabama is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of April 28, 2011.
Escambia County for Individual Assistance (already designated for debris removal and emergency protective measures [Categories A and B], including direct Federal assistance, under the Public Assistance program).
Greene and Perry Counties for Public Assistance [Categories C-G] (already designated for Individual Assistance and assistance for debris removal and emergency protective measures [Categories A and B], including direct Federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Alabama (FEMA-1971-DR), dated April 28, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective May 31, 2011.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Mississippi (FEMA-1972-DR), dated April 29, 2011, and related determinations.
Tod Wells, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
Notice is hereby given that, on May 5, 2011, the President amended the cost-sharing arrangements regarding Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I authorize as a pilot project a 90 percent Federal cost share until June 12, 2011 (45 days from the date of declaration) for Direct Federal Assistance for debris removal for those areas within counties designated for Public Assistance that are within, Or immediately adjacent to, areas of “extensive” or “catastrophic” damage as determined and depicted by the National Geospatial Intelligence Agency. Further, under this pilot program, FEMA shall obtain any applicable private insurance payments for debris removal to reimburse Federal costs to the fullest extent of the law.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Alabama (FEMA-1971-DR), dated April 28, 2011, and related determinations.
Tod Wells, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
Notice is hereby given that, on May 5, 2011, the President amended the cost-sharing arrangements regarding Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I authorize as a pilot project a 90 percent Federal cost share until June 12, 2011 (45 days from the date of declaration) for Direct Federal Assistance for debris removal for those areas within counties designated for Public Assistance that are within, Or immediately adjacent to, areas of “extensive” or “catastrophic” damage as determined and depicted by the National Geospatial Intelligence Agency. Further, under this pilot program, FEMA shall obtain any applicable private insurance payments for debris removal to reimburse Federal costs to the fullest extent of the law.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Missouri (FEMA-1980-DR), dated May 9, 2011, and related determinations.
Tod Wells, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
Notice is hereby given that, on May 31, 2011, the President amended the cost-sharing arrangements regarding Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
A ninety percent (90%) Federal cost share for all debris removal, including direct Federal assistance, for those areas within counties designated for Public Assistance that are within, or immediately adjacent to, areas of “extensive” or “catastrophic” damage directly caused by the EF-5 tornado that struck Missouri on May 22, 2011, as determined by the Federal Coordinating Officer applying objective standards used by the National Geospatial-Intelligence Agency. I authorize this cost-share adjustment beginning May 22, 2011, through August 7, 2011. FEMA and the State of Missouri shall pursue any applicable private insurance payments for debris removal to reimburse Federal costs to the extent permitted by law.
This adjustment to State and local cost sharing applies only to Public Assistance costs, including direct Federal assistance, for eligible debris removal for those areas within counties designated for Public Assistance that are within, or immediately adjacent to, areas of “extensive” or “catastrophic” damage directly caused by the May 22, 2011, EF-5 tornado as determined above by the Federal Coordinating Officer. All other Public Assistance costs will continue to be reimbursed at 75 percent of total eligible costs. The law specifically prohibits a similar adjustment for funds provided to States for Other Needs Assistance (Section 408) and the Hazard Mitigation Grant Program (Section 404). These funds will continue to be reimbursed at 75 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Alabama (FEMA-1971-DR), dated April 28, 2011, and related determinations.
Tod Wells, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
Notice is hereby given that, on May 25, 2011, the President amended the cost-sharing arrangements regarding Federal funds provided under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
A pilot project at 90 percent Federal cost share for debris removal, including direct Federal assistance, for those areas within counties designated for Public Assistance that are within, or immediately adjacent to, areas of “extensive” or “catastrophic” damage as determined by the Federal Coordinating Officer applying objective standards used by the National Geospatial-Intelligence Agency. This cost-share adjustment is authorized beginning April 28, 2011, through July 12, 2011. FEMA and the State of Alabama shall continue to pursue any applicable private insurance payments for debris removal to reimburse Federal costs to the extent permitted by law.
This adjustment to State and local cost sharing applies only to Public Assistance costs, including direct Federal assistance, for eligible debris removal under the pilot project. All other Public Assistance costs will continue to be reimbursed at 75 percent of total eligible costs. The law specifically prohibits a similar adjustment for funds provided to States for Other Needs Assistance (Section 408) and the Hazard Mitigation Grant Program (Section 404). These funds will continue to be reimbursed at 75 percent of total eligible costs.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Kentucky (FEMA-1976-DR), dated May 4, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the Commonwealth of Kentucky is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 4, 2011.
Christian, Hopkins, Menifee, Nelson, and Rowan Counties for Public Assistance, including direct Federal assistance.
McCracken County for Public Assistance, including direct Federal assistance (already designated for emergency protective measures [Category B], limited to direct Federal assistance, under the Public Assistance program).
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day notice and request for comments; Extension of an existing collection of information: 1651-0100.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning the Petition for Remission or Mitigation of Forfeitures and Penalties Incurred. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Written comments should be received on or before August 12, 2011, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or record keepers from the collection of information (a total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces that U.S. Customs and Border Protection (CBP) plans to conduct a National Customs Automation Program (NCAP) test relating to highway movements of commercial goods that are transported in-bond through the United States from one point in Canada to another point in Canada. The NCAP test designates a new filing code in CBP's Automated Commercial Environment (ACE) Truck Manifest System to identify the shipment as being part of a joint CBP and Canada Border Services Agency (CBSA) In-Transit Project and requires test participants to transmit the manifest electronically and to submit an additional data element. The new filing code and additional data element will enable CBP and the CBSA to better track the movement of these goods, to share information about the in-bond movement and to streamline procedures for test participants. This notice provides a description of the NCAP test process, sets forth eligibility requirements for participation, and invites public comment on any aspect of the planned test.
The test will commence no earlier than July 13, 2011. Comments concerning this notice and all aspects of the announced test may be submitted at any time during the test period.
Written comments concerning program, policy and technical issues should be submitted to Mr. Gary Schreffler, Chief, Cargo Control Branch, Office of Field Operations, U.S. Customs and Border Protection, via e-mail at
The National Customs Automation Program (NCAP) was established in Subtitle B of Title VI—Customs Modernization, in the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, 2170, December 8, 1993) (Customs Modernization Act).
Section 343(a) of the Trade Act of 2002, as amended (the Trade Act; 19 U.S.C. 2071 note), requires CBP to promulgate regulations providing for the mandatory transmission of electronic cargo information by way of a CBP approved electronic data interchange (EDI) system before the cargo is brought into or departs the United States by any mode of commercial transportation (sea, air, rail or truck). The required cargo information is that which is reasonably necessary to enable high-risk shipments to be identified for purposes of ensuring cargo safety and security and preventing smuggling pursuant to the laws enforced and administered by CBP.
On December 5, 2003, CBP published a final rule in the
In a notice published in the
Highway movements of commercial goods that are transported through the United States from one point in Canada to another point in Canada must be transported in-bond and processed as Transportation and Exportation (T&E) entries. The procedures for these in-bond shipments are addressed in 19 CFR 123.42. Among other things, this regulation requires the filing of a manifest and various reports to CBP and the CBSA regarding the movement of the goods. Although reference is made to a paper manifest, CBP's in-bond process for T&E entries is supported in the ACE Truck Manifest System. The ACE Truck Manifest System enables carriers to submit T&E entries by filing an e-Manifest. This NCAP test requires participants to file their T&E entries using an e-Manifest in the ACE Truck Manifest System and eliminates one of the reporting requirements.
On March 10, 2011, CBP and the CBSA finalized a memorandum of understanding (MOU) titled, “Arrangement Between the Canada Border Services Agency and the Department of Homeland Security, United States Customs and Border Protection Regarding the Highway In-Transit Project.” In the MOU, CBP and the CBSA state their intention to implement the Highway In-Transit Project (In-Transit Project) on a pilot basis for shipments transiting through the United States (from one point in Canada to another point in Canada) and to later jointly assess whether to begin implementing the In-Transit Project on a pilot basis for shipments transiting through Canada (from one point in the United States to another point in the United States), or on a permanent basis for one or both types of transit movements. The MOU provides for the automation of the reporting of in-transit highway movements of commercial goods between Canada and the United States. The MOU specifies the criteria that highway carriers must meet in order to participate in the In-Transit
In order to facilitate implementation of the In-Transit Project for shipments transiting the United States from one point in Canada to another point in Canada, CBP is implementing this NCAP test to designate a new filing code in the ACE Truck Manifest System for truck carriers participating in the In-Transit Project to indicate that their shipments are being shipped as part of the In-Transit Project. Additionally, under the NCAP test, carriers will file an additional data element, the Canadian Cargo Control Number (CCN), consisting of a CBSA-issued carrier code and a unique reference number assigned by the carrier. The CCN will allow the CBSA and CBP to track in-bond shipments being transported under the NCAP test and will facilitate the closing out of these T&E entries. Carriers will only be required to report their arrival to CBP at the United States port of export and the CBSA will notify CBP when the shipment enters into Canada. At that point, the T&E will be updated in the system as exported.
To participate in this NCAP test, a truck carrier must be a bonded carrier with CBP and the CBSA, be accepted by the CBSA to participate in the In-Transit Project, and must be able to transmit an e-Manifest using the American National Standards Institute (ANSI) X12 format to CBP. For information on how to participate in the In-Transit Project go to the CBSA Web site at:
Carriers that wish to participate in this NCAP test should send a letter or e-mail to CBP stating that they meet the eligibility requirements and that they wish to participate in the NCAP Test of Automated Procedures for Canada-United States-Canada In-Transit Movements. The letter or e-mail must include (1) The carrier's name, (2) Internal Revenue Service number (IRS number), and (3) proof of acceptance by the CBSA to participate in the In-Transit Project. CBP will accept the first nine eligible carriers that apply and will notify the carriers that they have been accepted to participate in the NCAP test. Applications can be submitted at any time during the test and should be submitted to Gary Schreffler, Chief, Cargo Control Branch, Office of Field Operations, U.S. Customs and Border Protection, via e-mail at
Truck carriers participating in this NCAP test will be required to file a T&E entry for the in-bond movement by submitting a complete e-Manifest to CBP using the ANSI X12 format (referred to as a 309 manifest) no later than either 30 minutes or one hour (as applicable) before entering the United States. A complete e-Manifest using the ANSI X12 format includes the following components: Trip, crew, conveyance, equipment, and complete shipment data. At this time, the ACE Secure Data Portal and the United Nations/Electronic Data Interchange for Administration, Commerce and Transport (UN/EDIFACT) are not available for use.
Carriers will indicate that the T&E entry is being filed as part of the In-Transit Project by designating the entry as a type 70 filing. Type 62 filings are currently used for Canadian T&E entries transiting the United States. Additionally, carriers will file an additional data element, the CCN, issued by the CBSA when the shipment leaves Canada. The CCN consists of a CBSA-issued carrier code and a unique reference number assigned by the carrier. The CCN is not required under CBP's current process. The CCN will be used by CBP to notify the CBSA when the shipment crosses into the United States and by the CBSA to notify CBP when the shipment is exported back into Canada.
The 309 manifest will be processed and retained in ACE as a normal manifest. Upon arrival in the United States, CBP will generate a “transit movement authorized” message (referred to as a 350 message) that will be sent to the carrier and to the CBSA. The shipment will then be able to transit the United States and proceed to the United States port of export as a T&E entry. When the shipment arrives at the United States port of export, the carrier will report the arrival of the shipment to CBP via an EDI message or through their ACE portal account. When the shipment exits the United States and arrives in Canada, the CBSA will transmit a message (referred to as a 353 message) notifying CBP that the shipment has entered Canada. CBP will generate another 350 message and send it to the carrier notifying the carrier that the shipment has entered Canada and that the T&E entry status is exported. At this point the T&E entry will be closed with CBP.
Carriers transporting a shipment through the United States as part of this NCAP test will be required to complete the T&E entry by exporting their shipment to Canada. Carriers will not be allowed to divert these shipments to a port that is not a land crossing port between the United States and Canada.
Any future expansion in ACE to include a new in-bond filing code for in-transit movements through Canada and back to the United States (U.S-Canada-U.S) or expansion of this test to include other transmission methods, i.e., UN/EDIFACT or ACE Secure Data Portal, will be announced via a separate
Regulations that conflict with the terms and conditions of this test, namely regulations contained in parts 18 and 123, including section 123.42, are suspended and overridden to the extent of the conflict for the duration of this test for those participants in this test and only to the extent of their participation in this test.
If a test participant fails to abide by the rules, procedures, or term and conditions of this and all other applicable
All interested parties are invited to comment on any aspect of this test at any time. To ensure adequate feedback, participants are required to take part in an evaluation of this test. CBP needs comments and feedback on all aspects of this test, including the design, conduct and implementation of the test, in order to determine whether to modify, alter, expand, limit, continue, end or implement this program by regulation. The final results of the evaluation will be published in the
As noted above, CBP will be accepting only nine participants in the NCAP test. This means that fewer than ten persons will be subject to any information collections under the NCAP test. Accordingly, collections of information encompassed within this notice are exempted from the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3502 and 3507).
Bureau of Land Management, Interior.
Notice of public meeting.
The Bureau of Land Management Eastern States has scheduled a public meeting to share information about the condition of the equestrian stables at Meadowood Special Recreation Management Area (SRMA), located in Lorton, VA, and collect comments, suggestions and ideas from the public pertaining to the future of the structure. The meeting agenda includes an overview of current options for making repairs to a 34-year-old barn currently used as a boarding facility for private horses, while accommodating therapeutic riding and riding lessons that are available to the public.
The meeting is scheduled as follows: June 28, 2011; 7 p.m., local time.
Laurel Hill Golf Course Clubhouse, 8701 Laurel Crest Dr., Lorton, VA 22079.
E. Lynn Burkett, BLM-ES Lower Potomac Field Station Manager;
The meeting will begin with an overview of the status of equestrian activities at the Meadowood SRMA. Comments, suggestions and ideas will be accepted from the public via the U.S. Postal Service, or by e-mail to:
Fish and Wildlife Service, Interior.
Notice of meeting.
The Trinity Adaptive Management Working Group (TAMWG) affords stakeholders the opportunity to give policy, management, and technical input concerning Trinity River (California) restoration efforts to the Trinity Management Council (TMC). The TMC interprets and recommends policy, coordinates and reviews management actions, and provides organizational budget oversight. This notice announces a joint TAMWG and TMC meeting, which is open to the public.
TAMWG-TMC will meet from 9:30 a.m. to 5 p.m. on Wednesday, June 29, 2011.
The meeting will be held at the Trinity Alps Resort, 1750 Trinity Alps Road, Trinity Center, CA 96091.
Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), this notice announces a joint meeting of the TAMWG-TMC. The meeting will include discussion of the following topics:
• Interests and perspectives of members of the TMC and TAMWG,
• Possible improvements in operations and implementation of the TRRP,
• Possible improvements in TAMWG-TMC relations.
Completion of the agenda is dependent on the amount of time each item takes. The meeting could end early if the agenda has been completed.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that the Bureau of Land Management (BLM) will issue an appealable decision to The Kuskokwim Corporation. The decision approves the surface estate in the lands described below for conveyance pursuant to the Alaska Native Claims Settlement Act. The subsurface estate in these lands will be conveyed to Calista
Containing approximately 2,873 acres.
Containing 1,891.83 acres.
Containing 1,304.92 acres.
Containing 640 acres.
Aggregating approximately 6,710 acres.
Notice of the decision will also be published four times in the
Any party claiming a property interest in the lands affected by the decision may appeal the decision within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until July 13, 2011 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
3. Notices of appeal transmitted by electronic means, such as facsimile or e-mail, will not be accepted as timely filed.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7504.
The BLM by phone at 907-271-5960 or by e-mail at
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, the Bureau of Land Management (BLM) Farmington Field Office (Field Office), Farmington, New Mexico, intends to amend the 2003 Farmington Resource Management Plan (RMP) and prepare an associated Environmental Assessment (EA) to address the Visual Resource Management (VRM) in the planning area. By this Notice, the Field Office is announcing the beginning of the scoping process to solicit public comments and identify issues.
This Notice initiates the public scoping process for the RMP amendment and associated EA. Comments on issues may be submitted in writing until July 13, 2011. The date(s), time(s), and location(s) of any scoping meetings will be announced at least 15 days in advance through local media, newspapers and the BLM Web site at:
You may submit comments on issues and planning criteria related to the Farmington Visual Resource Management RMP amendment/EA by any of the following methods:
•
•
•
•
Documents pertinent to this proposal may be examined at the Farmington Field Office.
For further information and/or to have your name added to our mailing list, contact Janelle Alleman, Outdoor Recreation Planner; telephone 505-599-8944; address 1235 La Plata Highway, Farmington, New Mexico 87401; e-mail at
The BLM Farmington Field Office, Farmington, New Mexico, intends to prepare an RMP amendment and associated EA to address the visual resource management in the planning area. The planning area is located in San Juan, Rio Arriba, and Sandoval Counties, New Mexico, and encompasses 1.4 million acres of public land in these counties. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process. The RMP completed in 2003 directs the Field Office to conduct a review of VRM objectives upon the completion of a new visual resource inventory. That inventory was completed in March of 2009. The purpose of this RMP amendment/EA is to address the need to update the VRM objectives in the 2003 RMP.
The BLM is required to manage public lands in such a manner as to protect the quality of the scenic (visual) values of these lands. The RMP amendment/EA will determine if, over time, changes in the condition of the visual resources within the planning area warrant changes to VRM management objectives, and to what degree. VRM objectives (or classes) provide the basic visual management standards for design and development of surface disturbing projects on public lands and are determined through careful analysis and consideration of other land uses, needs and demands. VRM Classes I through IV are designated in the RMP and establish
The BLM will use an interdisciplinary approach to develop the plan in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Rangeland management, minerals and geology, outdoor recreation, archaeology, paleontology, wildlife, lands and realty, hydrology, soils, sociology, economics, and wilderness.
At present, the BLM has identified the following preliminary planning issues: (1) How should visual resources be managed to address areas of scenic quality in contrast to increasing development? (2) How should changes in the visual resource inventory be used to address modifications to the visual resource management classes? (3) What type of protective management prescriptions should be considered to address visual resources?
Proposed planning criteria include the following:
1. The RMP amendment/EA will comply with FLPMA, NEPA, and all other applicable laws, regulations, and policies;
2. For program-specific guidance for decisions at the land use planning level, the process will follow the BLM's policies in the Land Use Planning Handbook, H-1601-1;
3. Public participation and collaboration will be an integral part of the planning process;
4. The BLM will strive to make decisions in the plan compatible with the existing plans and policies of adjacent local, state, and Federal agencies and local American Indian tribes, as long as the decisions are consistent with the purposes, policies, Federal laws, and regulations applicable to public lands;
5. The RMP amendment/EA will recognize valid existing rights;
6. The RMP amendment/EA will incorporate, where applicable, management decisions brought forward from existing planning documents;
7. The BLM staff will work cooperatively and collaboratively with cooperating agencies and all other interested groups, agencies, and individuals;
8. The BLM and cooperating agencies will jointly develop alternatives for resolution of resource management issues and management concerns;
9. GIS and metadata information will meet Federal Geographic Data Committee standards, as required by Executive Order 12906 and all other applicable BLM data standards will be followed;
10. The planning process will provide for ongoing consultation with American Indian tribes to identify strategies for protecting recognized traditional uses;
11. Planning and management direction will focus on the relative values of resources and not the combination of uses that will give the greatest economic return or economic output;
12. The BLM will consider the quantity and quality of non-commodity resource values;
13. Where practicable and timely for the planning effort, the best available scientific information, research, and new technologies will be used;
14. Actions must comply with all applicable regulations and must be reasonable, achievable, and allow for flexibility while supporting adaptive management principles; and
15. The Economic Profile System will be used as one source of demographic and economic data for the planning process, which will provide baseline data and contribute to estimates of existing and projected social and economic conditions.
The BLM will utilize and coordinate the NEPA commenting process to satisfy the public involvement process for Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested in or affected by the BLM's decision on this project are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency. You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
Please note that public comments and information submitted including names, street addresses, and e-mail addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Las Cruces District Office, Las Cruces, New Mexico, intends to prepare an Environmental Assessment (EA) and a possible amendment to the 1993 Mimbres Resource Management Plan (RMP), and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues and planning criteria.
This notice initiates the public scoping process for the EA. Comments on issues may be submitted in writing until July 13, 2011. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local media, newspapers, and the BLM Web site at:
You may submit comments on issues and planning criteria related to the EA by any of the following methods:
•
•
•
•
Documents pertinent to this proposal may be examined at the Las Cruces District Office.
For further information and/or to have your name added to our mailing list, contact Jennifer Montoya, telephone 575-525-4316; address 1800 Marquess Street, Las Cruces, New Mexico 88005; e-mail
This document provides notice that the BLM Las Cruces District Office intends to prepare an EA and possible land use plan amendment for the Mimbres Planning Area, announces the beginning of the scoping process, and seeks public input on issues and planning criteria.
The BLM is currently considering expanding the boundary of the Gila Lower Box Area of Critical Environmental Concern (ACEC), which would allow the BLM to provide special management to an area with significant scenic, cultural, and biological resources.
The public land proposed for management as an ACEC is currently not part of the ACEC and is managed in accordance with the 1993 Mimbres RMP. Therefore, the RMP may need to be amended to identify the public land as suitable for ACEC designation. The public land is a portion of and within the following areas:
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EA. At present, the BLM has identified the following preliminary issues:
1. How should the BLM design management to enhance the watershed?
2. What management is needed to address the significant cultural resources that occur in the watershed?
3. How should the BLM address land tenure in the area considering the RMP directs the Las Cruces District Office to acquire all State trust and private land in-holdings through exchange or purchase from willing sellers?
4. How should the BLM address increased interest in renewable energy development in the area?
5. How should the BLM address the eligibility of the Gila Lower Box as a Wild and Scenic River?
6. Which lands would be appropriate for ACEC designation and what management prescriptions should apply?
7. What potential impacts would this proposed action have on neighboring private landowners?
8. What effects would this proposed action have on recreation and tourism in the area?
9. What effects would this proposed action have on agricultural activities in the area?
10. Which species will benefit from an expanded ACEC?
Authorization of this proposal requires amendment of the 1993 Mimbres RMP. By this notice, the BLM is complying with requirements in 43 CFR 1610.2(c) to notify the public of potential amendments to land use plans, predicated on the findings of the EA. If a land use plan amendment is necessary, the BLM will integrate the land use planning process with the NEPA process for this project.
The BLM will utilize and coordinate the NEPA commenting process to satisfy the public involvement process for Section 106 of the National Historic Preservation Act, 16 U.S.C. 470f, as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7; 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Pursuant to the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b), the Bureau of Land Management (BLM) received a petition for reinstatement from Makoil Inc., for competitive oil and gas lease NVN-77187 on land in Nye County, Nevada. The petition was timely filed and was accompanied by rental due since the lease terminated under the law. No valid leases have been issued affecting the lands.
Atanda Clark, BLM Nevada State Office, 775-861-6632, or e-mail:
The lessee has agreed to the amended lease terms for rental and royalties at rates of $10 per acre or fraction thereof per year and 16
43 CFR 3108.2-3(a).
Notice is hereby given that, on May 12, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), Portland Cement Association (“PCA”) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Drake Cement, LLC, Scottsdale, AZ; Argos USA Corporation, Houston, TX; Penta Engineering Corporation, St. Louis, MO; and Schreiber Yonley Associates, Ashland, MO, have been added as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and PCA intends to file additional written notifications disclosing all changes in membership.
On January 7, 1985, PCA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 2, 2011. A notice was published in the
Notice is hereby given that, on May 9, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IMS Global Learning Consortium, Inc. intends to file additional written notifications disclosing all changes in membership.
On April 7, 2000, IMS Global Learning Consortium, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on March 3, 2011. A notice was published in the
Notice is hereby given that, on May 11, 2011, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASTM filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 4, 2011. A notice was published in the
Veterans' Employment and Training Service, Labor.
Notice.
The Advisory Committee on Veterans' Employment, Training, and Employer Outreach (ACVETEO) was reestablished on March 30, 2011 as a federal advisory committee within the Department of Labor.
The ACVETEO's authorizing legislation is codified at 38 U.S.C. 4110. It is established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, as amended.
The ACVETEO is responsible for assessing employment and training needs of Veterans and their integration into the workforce; determining the extent to which the programs and activities of the Department of Labor (DOL) are meeting such needs; assisting the Assistant Secretary of Veterans' Employment and Training (ASVET) in outreach to employers regarding training and skills of Veterans and advantages afforded employers by hiring Veterans; making recommendations to the Secretary of Labor, through the ASVET, with respect for outreach activities and the employment and training of Veterans; and carrying out such other activities necessary to making required reports and recommendations. The statute requires the ACVETEO to meet at least quarterly and to submit an annual report by December 31 of each year on the prior year's activities to the Secretary and the Committees on Veterans' Affairs of the House of Representatives and the Senate.
As established by statute, the membership of the ACVETEO must consist of at least 12, but no more than 16, individuals appointed by the Secretary of Labor:
• Seven individuals, one each from among representatives nominated by each of the following service organizations: the Society for Human Resource Management, the Business Roundtable, the National Association of State Workforce Agencies, the United States Chamber of Commerce, the National Federation of Independent Business, a nationally recognized labor union or organization, and the National Governors Association.
• Not more than five individuals from among representatives nominated by veterans' service organizations that have a national employment program.
• No more than five individuals who are recognized authorities in the fields of business, employment, training, rehabilitation, or labor and who are not employees of the Department of Labor.
In addition, the following, or their representatives, are ex-officio, non-voting members: Secretaries of Veterans Affairs and Defense; Director of the Office of Personnel Management; Assistant Secretary of Labor for Veterans' Employment and Training; the Assistant Secretary of Labor for Employment and Training; and the Administrator of the Small Business Administration.
The ACVETEO is a non-discretionary advisory committee required by law and provides valuable advice to the Secretary of Labor. Therefore, the Department has determined that it is necessary and in the public interest to reestablish the committee.
The Veterans' Employment and Training Service (VETS) is responsible for providing the necessary support for the ACVETEO. The Director, Strategic Outreach and Legislative Affairs within VETS will serve as the Designated Federal Official (DFO). Individuals requesting further information should contact Nancy Hogan, Designated Federal Official, at (202) 693-4700.
Employee Benefits Security Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). This notice includes the following: D-11632, 2011-10, William W. Etherington IRA (the Plan); D-11642, 2011-11, H-E-B Brand Savings and Retirement Plan (the Plan) and H.E. Butt Grocery Company (the Company); L-11625, 2011-12, The International Union of Painters and Allied Trades Finishing Trades Institute (the Plan or the Applicants); and L-11641, 2011-13, Ford Motor Company (the Applicant)
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
The sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the sale (the Sale) by the IRA to William W. Etherington and his wife, Paula D. Etherington (the Applicants), disqualified persons with respect to the IRA,
(a) The terms and conditions of the Sale are at least as favorable to the IRA
(b) The Sale is a one-time transaction for cash;
(c) As consideration, the IRA receives the fair market value of the Interest as determined by a qualified, independent appraiser, in an updated appraisal on the date of Sale; and
(d) The IRA pays no real estate commissions, costs, fees, or other expenses with respect to the Sale.
The Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed exemption on or before April 14, 2011. During the comment period, the Department received one written comment from the Applicants, which was submitted by Mr. Etherington, the owner of the IRA. The Department received no hearing requests.
The Applicants' comment concerned their desire to use a different qualified, independent appraiser than Mary Mau of Second Opinion Appraisal, Inc. (the Appraiser), the individual who performed the original appraisal (the Appraisal) of the Property on February 10, 2010, in order to determine the fair market value of the Interest. Condition (c) of the proposed exemption provides that the Interest's appraised value, which is based on the underlying value of the Property, must be updated on the date of Sale.
In conversations with the Department, Mr. Etherington stated that he was dissatisfied with the responsiveness of the Appraiser and the cost of her services. In this regard, Mr. Etherington represented that, after the Appraisal was conducted, it took the Appraiser in excess of three months to submit additional representations concerning her status as a qualified independent appraiser, along with copies of supporting documentation, which had been requested by the Department. Mr. Etherington stated that, during this period, he had attempted to contact the Appraiser on numerous occasions to request that the submission of the additional information be expedited, but the Appraiser was unresponsive to his inquiries. Furthermore, the Appraiser requested an additional fee for such submission, which Mr. Etherington viewed as unreasonable because he did not believe that the Applicants should be forced to pay an extra fee for information that was requested by the Department in connection with the Appraisal.
Accordingly, the Applicants have retained Mr. Don Baxter of the Baxter Realty Group, located in Kailua, Hawaii, to perform the Update on the Property. According to Mr. Etherington, Mr. Baxter is a Certified Residential Appraiser, licensed under the State of Hawaii, and has no personal relationship with the Applicants or any interest in the Property or the Sale. In his comment, Mr. Etherington states that Mr. Baxter will charge $575.92 for the Update and will provide a verbal confirmation of the Property's value on the date of Sale for free, if the Property's fair market value has not changed. According to Mr. Etherington, if the Property's value has changed on the date of Sale, then Mr. Baxter will provide an additional Update, at a fee to be determined at the time. Finally, in his comment letter, Mr. Etherington represents that Mr. Baxter will earn less than 1% of his annual income from the Applicants and he understands that the Update will be used for the purpose of obtaining an exemption from the Department for the Sale.
It is the Department's understanding that the Update, and any necessary verbal confirmation at the time of the Sale, will be conducted by a qualified, independent appraiser, as required under the Department's policies and exemption procedures, and in compliance with Condition (c) of the proposal. Therefore, based on Mr. Etherington's comment letter, the Department concurs with the Applicants' request to retain a new qualified, independent appraiser to perform the Update, and takes note of any corresponding changes to the proposed exemption.
After giving full consideration to the entire record, including the Applicants' written comment, the Department has decided to grant the exemption, as described above. The complete application file is made available for public inspection in the Public Documents Room of the Employee Benefits Security Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption refer to the proposed exemption published in the
Mr. Warren Blinder of the Department at (202) 693-8553. (This is not a toll-free number.)
The restrictions of section 406(a), section 406(b)(1), and section 406(b)(2) of the Act and the sanctions resulting from the application of 4975 of the Code by reason of section 4975(c)(1)(A) through (E) of the Code shall not apply to the sale of real property (the Property) by the Plan to the Company, a party in interest with respect to the Plan; provided the following conditions are satisfied:
(a) The sale of the Property is a one-time transaction for cash;
(b) The Plan will receive from the proceeds of the sale of the Property a sales price in the amount of $2,762,566, plus an amount equal to $432,618 (the
(c) The terms and conditions of the sale are at least as favorable to the Plan as those obtainable in an arm's length transaction with an unrelated party; and
(d) The Plan pays no fees, commissions, or other expenses in connection with the sale of the Property to the Company; and
(e) Prior to entering into the subject transaction, the trustees of the Plan determine that the sale of the Property is feasible, protective of, and in the interest of the Plan and its participants and beneficiaries.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption refer to the Notice of Proposed Exemption published on March 15, 2011, at 76 FR 14094.
Ms. Angelena C. Le Blanc of the Department, telephone (202) 693-8540. (This is not a toll-free number.)
The restrictions of sections 406(a)(1)(A), (C) and (D), 406(b)(1), and 406(b)(2) of the Act shall not apply to the payment for lodging and meals by the Plan to the International Union of Painters and Allied Trades, AFL-CIO (the Union), a party in interest with respect to the Plan, in a residence hall (the Residence Hall) owned by the Union through its wholly-owned entity IUPAT Building Corporation LLC (the Building Corporation), provided that the following conditions are satisfied:
(a) An independent, qualified fiduciary (the I/F), acting on behalf of the Plan, determines prior to entering into the transaction that the transaction is feasible, in the interest of, and protective of the Plan and the participants and beneficiaries of the Plan;
(b) Before the Plan enters into the proposed transaction, the I/F reviews the transaction, ensures that the terms of the transaction are at least as favorable to the Plan as an arm's length transaction with an unrelated party, and determines whether or not to approve the transaction, in accordance with the fiduciary provisions of the Act;
(c) The I/F monitors compliance with the terms and conditions of this exemption, as described herein, and ensures that such terms and conditions are at all times satisfied;
(d) The I/F monitors compliance with the terms of the written agreement (the Agreement) between the Plan and the Union, and takes any and all steps necessary to ensure that the Plan is protected, including, but not limited to, agreeing to extend the Agreement on an annual basis or exercising his authority to terminate the Agreement on 30 days' written notice;
(e) The payments by the Plan for the lodging at the Residence Hall and for the meals provided under the Agreement and under the terms of any subsequent extension of the Agreement are at no time greater than their fair market value, as determined by the I/F;
(f) The subject transaction is on terms and at all times remains on terms that are at least as favorable to the Plan as those that would have been negotiated under similar circumstances at arm's-length with an unrelated third party;
(g) The Applicant's independent auditor will perform an annual audit for the Plan to verify whether the Plan paid the proper amounts with respect to the subject transaction. In this regard, the written audit report for each year must identify, as applicable, any errors or irregularities relating to such payments, any internal control weaknesses that must be addressed under generally accepted auditing standards, and any recordkeeping matters that would impede the auditor from properly auditing such payments. To the extent there are any discrepancies as to the foregoing matters, the independent auditor will promptly communicate them to the Board of Trustees of the Plan (the Trustees), who will, in turn, promptly notify the I/F about such discrepancies.
(h) The transaction is appropriate and helpful in carrying out the purposes for which the Plan is established or maintained;
(i) The Trustees maintain, or cause to be maintained within the United States for a period of six (6) years in a manner that is convenient and accessible for audit and examination, such records as are necessary to enable the persons described, below, in paragraph (j)(1) of this exemption to determine whether the conditions of this exemption have been met; except that—
(1) If the records necessary to enable the persons described, below, in paragraph (j)(1) of this exemption to determine whether the conditions of this exemption have been met are lost or destroyed, due to circumstances beyond the control of the Trustees, then a separate prohibited transaction will not be considered to have occurred solely on the basis of the unavailability of those records; and
(2) No party in interest, other than the Trustees, shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required by paragraph (i) of this exemption; and
(j)(1) Except as provided, below, in paragraph (j)(2) of this exemption and notwithstanding any provisions of sections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (i) of this exemption are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or any other applicable federal or state regulatory agency;
(B) Any fiduciary of the Plan, or any duly authorized representative of such fiduciary;
(C) Any contributing employer to the Plan and any employee organization whose members are covered by the Plan, or any duly authorized employee or representative of these entities; or
(D) Any participant or beneficiary of the Plan, or any duly authorized representative of such participant or beneficiary.
(2) None of the persons described, above, in paragraph (j)(1)(B)-(D) of this exemption are authorized to examine trade secrets or commercial or financial information that is privileged or confidential.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption (the Notice) published on March 15, 2011 at 76 FR 14096. The Department received no comments or hearing requests with respect to the Notice.
(a) The restrictions of sections 406(a)(1)(A), 406(a)(1)(B), 406(a)(1)(E), 406(a)(2), 406(b)(1), 406(b)(2) and 407(a) of ERISA shall not apply to the following transactions:
(1) The acquisition by the UAW Ford Retirees Medical Benefits Plan (the Ford VEBA Plan) and its funding vehicle, the UAW Retiree Medical Benefits Trust (the VEBA Trust) of: (i) The LLC Interests; (ii) New Note A; (iii) New Note B (together with New Note A, the New Notes); and (iv) Warrants, transferred by Ford and deposited in the Ford Employer Security Sub-Account of the Ford Separate Retiree Account of the VEBA Trust.
(2) The acquisition by the Ford VEBA Plan of shares of Ford Common Stock pursuant to Ford's right to settle its payment obligations under New Note B in shares of Ford Common Stock (
(3) The acquisition by the Ford VEBA Plan of shares of Ford Common Stock pursuant to (i) The Independent Fiduciary's exercise of all or a pro rata portion of the Warrants, consistent with the 2009 Settlement Agreement and (ii) an adjustment, substitution, conversion, or other modification of Ford Common Stock in connection with a reorganization, restructuring, recapitalization, merger, or similar corporate transaction, provided that each holder of Ford Common Stock is treated in an identical manner;
(4) The holding by the Ford VEBA Plan of the aforementioned Securities in the Ford Employer Security Sub-Account of the Ford Separate Retiree Account of the VEBA Trust, consistent with the 2009 Settlement Agreement;
(5) The deferred payment of any amounts due under New Note B by Ford pursuant to the terms thereunder;
(6) The disposition of the Securities by the Independent Fiduciary; and
(7) The amendment of New Note B pursuant to the execution of the Note Agreement.
(b) The restrictions of sections 406(a)(1)(A), 406(b)(1), and 406(b)(2) of ERISA shall not apply to the sale of Ford Common Stock or Warrants held by the Ford VEBA Plan to Ford in accordance with the Right of First Offer or a Ford self-tender under the Securityholder and Registration Rights Agreement.
(c) The restrictions of sections 406(a)(1)(B), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of ERISA shall not apply to:
(1) The extension of credit or transfer of assets by Ford, the Ford Retiree Health Plan, or the Ford VEBA Plan in payment of a benefit claim that was the responsibility and legal obligation, under the terms of the applicable plan documents, of one of the other parties listed in this paragraph;
(2) The reimbursement by Ford, the Ford Retiree Health Plan, or the Ford VEBA Plan, of a benefit claim that was paid by another party listed in this paragraph, which was not legally responsible for the payment of such claim, plus interest;
(3) The retention of an amount by Ford until payment to the Ford VEBA Plan resulting from an overaccrual of pre-transfer expenses attributable to the TAA or the retention of an amount by the Ford VEBA Plan until payment to Ford resulting from an underaccrual of pre-transfer expense attributable to the TAA; and
(4) The Ford VEBA Plan's payment to Ford of an amount equal to any underaccrual by Ford of pre-transfer expenses attributable to the TAA or the payment by Ford to the Ford VEBA Plan of an amount equal to any overaccrual by Ford of pre-transfer expenses attributable to the TAA.
(d) The restrictions of sections 406(a)(1)(B), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of ERISA shall not apply to the return to Ford of assets deposited or transferred to the Ford VEBA Plan by mistake, plus interest.
(a) The Committee appoints a qualified Independent Fiduciary to act on behalf of the Ford VEBA Plan for all purposes related to the transfer of the Securities to the Ford VEBA Plan for the duration of the Ford VEBA Plan's holding of the Securities. Such Independent Fiduciary will have sole discretionary responsibility relating to the holding, ongoing management and disposition of the Securities, except for the voting of the Ford Common Stock. The Independent Fiduciary has determined or will determine, before taking any actions regarding the Securities, that each such action or transaction is in the interest of the Ford VEBA Plan.
(b) In the event that the same Independent Fiduciary is appointed to represent the interests of one or more of the other plans comprising the VEBA Trust (
(1) The Committee appoints a “conflicts monitor” to: (i) Develop a process for identifying potential conflicts; (ii) Regularly review the Independent Fiduciary reports, investment banker reports, and public information regarding the companies, to identify the presence of factors that could lead to a conflict; and (iii) Further question the Independent Fiduciary when appropriate.
(2) The Committee adopts procedures to facilitate prompt replacement of the Independent Fiduciary if the Committee in its sole discretion determines such replacement is necessary due to a conflict of interest.
(3) The Committee requires the Independent Fiduciary to adopt a written policy regarding conflicts of interest. Such policy shall require that, as part of the Independent Fiduciary's periodic reporting to the Committee, the Independent Fiduciary includes a discussion of actual or potential conflicts identified by the Independent Fiduciary and options for avoiding or resolving the conflicts.
(c) The Independent Fiduciary authorizes the trustee of the Ford VEBA Plan to dispose of the Ford Common Stock (including any Payment Shares or any shares of Ford Common Stock acquired pursuant to exercise of the Warrants), the LLC Interests, the New Notes, or exercise the Warrants, only after the Independent Fiduciary determines, at the time of the transaction, that the transaction is feasible, in the interest of the Ford VEBA Plan, and protective of the participants and beneficiaries of the Ford VEBA Plan.
(d) The Independent Fiduciary negotiates and approves on behalf of the Ford VEBA Plan any transactions between the Ford VEBA Plan and any party in interest involving the Securities that may be necessary in connection with the subject transactions (including but not limited to the registration of the Securities contributed to the Ford VEBA Plan).
(e) Any contract between the Independent Fiduciary and an investment banker includes an
(f) The Independent Fiduciary discharges its duties consistent with the terms of the Ford VEBA Plan, the Trust Agreement, the Independent Fiduciary Agreement, and any other documents governing the Securities, such as the Registration Rights Agreement.
(g) The Ford VEBA Plan incurs no fees, costs or other charges (other than described in the Trust Agreement, the 2009 Settlement Agreement, and the Securityholder and Registration Rights Agreement) as a result of the transactions exempted herein.
(h) The terms of any transaction exempted herein are no less favorable to the Ford VEBA Plan than the terms negotiated at arms' length under similar circumstances between unrelated parties.
(a) The Committee and the Ford VEBA Plan's third party administrator will review the benefits paid during the transition period and determine the dollar amount of mispayments made, subject to the review of the Ford VEBA Plan's independent auditor. The results of this review will be made available to Ford.
(b) Ford and the applicable third party administrator of the Ford Active Health Plan will review the benefits paid during the transition period and determine the dollar amount of mispayments made, subject to the review of the plan's independent auditor. The results of this review will be made available to the Committee.
(c) Interest on any reimbursed mispayment will accrue from the date of the mispayment to the date of the reimbursement.
(d) Interest will be determined using the applicable 6 month published LIBOR rate.
(e) If there is a dispute as to the amount, timing or other feature of a reimbursement payment, the parties will enter into the Dispute Resolution Procedure found in Section 26B of the 2009 Settlement Agreement and described further in Section VII(c) herein.
(a) Ford and the Committee will cooperate in the calculation and review of the amounts of expense accruals related to the TAA, and the amount of any overaccrual shall be made subject to the review of an independent auditor selected by Ford and the amount of any underaccrual shall be made subject to the review of the Ford VEBA Plan's independent auditor.
(b) Ford must make a claim for any underaccrual to the Committee, and the Committee must make a claim for any overaccrual to Ford, as applicable, within the Verification Time Period, as defined in Section VII(cc).
(c) Interest on any true-up payment will accrue from the date of transfer of the assets in the TAA (or the LLC containing the TAA) for the amount in respect of the overaccrual or underaccrual, as applicable, until the date of payment of such true-up amount.
(d) Interest will be determined using the published six month LIBOR rate.
(e) If there is a dispute as to the amount, timing or other feature of a true-up payment in respect of TAA expenses, the parties will enter into the Dispute Resolution Procedure found in Section 26B of the 2009 Settlement Agreement and described further in Section VII(c) herein.
(a) Ford must make a claim to the Committee regarding the specific deposit or transfer made in error or made in an amount greater than that to which the Ford VEBA Plan was entitled.
(b) The claim is made within the Verification Time Period, as defined in Section VII(cc).
(c) Interest on any mistaken deposit or transfer will accrue from the date of the mistaken deposit or transfer to the date of the repayment.
(d) Interest will be determined using the published six month LIBOR rate.
(e) If there is a dispute as to the amount, timing or other feature of a mistaken payment, the parties will enter into the Dispute Resolution Procedure found in Section 26B of the 2009 Settlement Agreement and described further in Section VII(c) herein.
(a) The Committee and the Independent Fiduciary maintain for a period of six years from the date (i) The Securities are transferred to the Ford VEBA Plan, and (ii) the shares of Ford Common Stock are acquired by the Ford VEBA Plan through the exercise of the Warrants or Ford's delivery of Payment Shares in settlement of its payment obligations under New Note B, the records necessary to enable the persons described in paragraph (b) below to determine whether the conditions of this exemption have been met, provided that (i) a separate prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of the Committee and/or the Independent Fiduciary, the records are lost or destroyed prior to the end of the six-year period, and (ii) no party in interest other than the Committee or the Independent Fiduciary shall be subject to the civil penalty that may be assessed under ERISA section 502(i) if the records are not maintained, or are not available for examination as required by paragraph (b) below; and
(b) Notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of ERISA, the records referred to in paragraph (a) above shall be unconditionally available at their customary location during normal business hours to:
(1) Any duly authorized employee or representative of the Department or the Internal Revenue Service;
(2) The UAW or any duly authorized representative of the UAW;
(3) Ford or any duly authorized representative of Ford;
(4) The Independent Fiduciary or any duly authorized representative of the Independent Fiduciary;
(5) The Committee or any duly authorized representative of the Committee; and
(6) Any participant or beneficiary of the Ford VEBA Plan or any duly authorized representative of such participant or beneficiary.
(c) None of the persons described above in paragraphs (b)(2), (4)-(6) shall be authorized to examine trade secrets of Ford, or commercial or financial information which is privileged or confidential, and should Ford refuse to disclose information on the basis that such information is exempt from disclosure, Ford shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
(a) The term “affiliate” means: (1) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such other person; (2) any officer, director, partner, or employee in any such person, or relative (as defined in section 3(15) of ERISA) of any such person; or (3) any corporation, partnership or other entity of which such person is an officer, director or partner. (For purposes of this definition, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.)
(b) The “Committee” means the eleven individuals consisting of six independent members and five UAW appointed members who will serve as the plan administrator and named fiduciary of the Ford VEBA Plan.
(c) The term “Dispute Resolution Procedure” means the process found in Section 26B of the 2009 Settlement Agreement to effectuate the resolution of any dispute respecting the transactions described in Sections I(c)(1), (c)(2), (c)(3), (c)(4), and (d) herein, and which reads in pertinent part: (1) The aggrieved party shall provide the party alleged to have violated the 2009 Settlement Agreement (Dispute Party) with written notice of such dispute, which shall include a description of the alleged violation and identification of the Section(s) of the 2009 Settlement Agreement allegedly violated. Such notice shall be provided so that it is received by the Dispute Party no later than 180 calendar days from the date of the alleged violation or the date on which the aggrieved party knew or should have known of the facts that give rise to the alleged violation, whichever is later, but in no event longer than 3 years from the date of the alleged violation; and (2) If the Dispute Party fails to respond within 21 calendar days from its receipt of the notice, the aggrieved party may seek recourse to the District Court; provided however, that the aggrieved party waives all claims related to a particular dispute against the Dispute Party if the aggrieved party fails to bring the dispute before the District Court within 180 calendar days from the date of sending the notice. All the time periods in Section 26 of the 2009 Settlement Agreement may be extended by agreement of the parties to the particular dispute.
(d) The term “Exchange Agreement” means the Security Exchange Agreement among Ford, the subsidiary guarantors listed in Schedule I thereto and the LLC, dated as of December 11, 2009.
(e) The term “Ford” or the “Applicant” means Ford Motor Company, located in Detroit, MI, and its affiliates.
(f) The term “Ford Active Health Plan” means the medical benefits plan maintained by Ford to provide benefits to eligible active hourly employees of Ford and its participating subsidiaries.
(g) The term “Ford Common Stock” means the shares of common stock, par value $0.01 per share, issued by Ford.
(h) The term “Ford Credit” means Ford Motor Credit Company LLC, a Delaware limited liability company and an indirect, wholly owned subsidiary of Ford.
(i) The term “Ford Employer Security Sub-Account of the Ford Separate Retiree Account of the VEBA Trust” means the sub-account established in the Ford Separate Retiree Account of the VEBA Trust to hold Securities on behalf of the Ford VEBA Plan.
(j) The term “Ford Retiree Health Plan” means the retiree medical benefits plan maintained by Ford that provided benefits to, among others, those who will be covered by the Ford VEBA Plan.
(k) The term “IFS” means Independent Fiduciary Services, Inc., a Delaware corporation, appointed by the Committee to be the Independent Fiduciary.
(l) The term “Implementation Date” means December 31, 2009.
(m) The term “Independent Fiduciary” means a fiduciary that is (1) Independent of and unrelated to Ford, the UAW, the Committee, and their affiliates, and (2) appointed to act on behalf of the Ford VEBA Plan with respect to the holding, management and disposition of the Securities. In this regard, the fiduciary will be deemed not to be independent of and unrelated to Ford, the UAW, the Committee, and their affiliates if (1) Such fiduciary directly or indirectly controls, is controlled by, or is under common control with Ford, the UAW, the Committee or their affiliates, (2) such fiduciary directly or indirectly receives any compensation or other consideration from Ford, the UAW or any Committee member in his or her individual capacity in connection with any transaction contemplated in this exemption (except that an Independent Fiduciary may receive compensation from the Committee or the Ford VEBA Plan for services provided to the Ford VEBA Plan in connection with the transactions discussed herein if the amount or payment of such compensation is not contingent upon or in any way affected by the independent fiduciary's ultimate decision), and (3) the annual gross revenue received by the fiduciary, in any fiscal year, from Ford, the UAW or a member of the Committee in his or her individual capacity, exceeds 3% of the fiduciary's annual gross revenue from all sources (for federal income tax purposes) for its prior tax year.
(n) The term “LLC” means the Ford-UAW Holdings LLC, established by Ford as a wholly owned LLC, and subsequently renamed VEBA-F Holdings LLC, established to hold the assets in the TAA and certain other assets required to be contributed to the VEBA under the 2008 Settlement Agreement, as amended by the 2009 Settlement Agreement.
(o) The term “LLC Interests” means Ford's wholly owned interest in the LLC.
(p) The term “New Note A” means the amortizing guaranteed secured note maturing on June 30, 2022, in the principal amount of $6,705,470,000, with payments to be made in cash, in annual installments from 2009 through 2022, issued by Ford and referred to in the Exchange Agreement.
(q) The term “New Note B” means the amortizing guaranteed secured note maturing June 30, 2022, in the principal amount of $6,511,850,000, with payments to be made in cash, Ford Common Stock, or a combination thereof, in annual installments from 2009 through 2022, unless prepaid, issued by Ford and referred to in the Exchange Agreement, and as amended by the Note Agreement, effective June 25, 2010.
(r) The term “Note Agreement” means the Agreement, dated as of June 25, 2010 by and among Ford, Ford Credit, and the VEBA Trust, acting by and through IFS, wherein the VEBA Trust will sell New Note A to Ford and Ford Credit and New Note B is amended to add provisions permitting Ford to prepay all or a portion of New Note B, in each case under the terms and conditions set forth therein.
(s) The term “Payment Shares” means any shares of Ford Common Stock issued by Ford to satisfy all or a portion of its payment obligation under New Note B, subject to the terms and conditions specified in New Note B.
(t) The term “published six month LIBOR rate” means the Official British Banker's Association Six Month London Interbank Offered Rate (LIBOR) 11 a.m. GMT “fixing” as reported on Bloomberg page “BBAM
(u) The term “Securities” means (1) New Note A; (2) New Note B; (3) the Warrants; (4) the LLC Interests, (5) any Payment Shares, and (6) additional shares of Ford Common Stock acquired in accordance with the transactions described in Sections I(a)(2) and (3) of this exemption.
(v) The term “Securityholder and Registration Rights Agreement” means the Securityholder and Registration Rights Agreement by and among Ford and the LLC, dated as of December 11, 2009.
(w) The term “2008 Settlement Agreement” means the settlement agreement, effective as of August 29, 2008, entered into by Ford, the UAW, and a class of retirees in the case of
(x) The term “2009 Settlement Agreement” means the 2008 Settlement Agreement, as amended by an Amendment to such Settlement Agreement dated July 23, 2009, effective as of November 9, 2009, entered into by Ford, the UAW, and a class of retirees in the case of
(y) The term “TAA” means the temporary asset account established by Ford under the 2008 Settlement Agreement to serve as tangible evidence of the availability of Ford assets equal to Ford's obligation to the Ford VEBA Plan.
(z) The term “Trust Agreement” means the trust agreement for the VEBA Trust.
(aa) The term “UAW” means the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.
(bb) The term “VEBA” means the Ford UAW Retirees Medical Benefits Plan (the Ford VEBA Plan) and its associated UAW Retiree Medical Benefits Trust (the VEBA Trust).
(cc) The term “Verification Time Period” means: (1) With respect to each of the Securities other than the payments in respect of the New Notes, the period beginning on the date of publication of the final exemption in the
(dd) The term “Warrants” means warrants issued by Ford to acquire 362,391,305 shares of Ford Common Stock at a strike price of $9.20 per share, expiring on January 1, 2013. For purposes of this definition, the term “Warrants” includes additional warrants to acquire Ford Common Stock acquired in partial or complete exchange for, or adjustment to, the warrants described in the preceding sentence, at the direction of the Independent Fiduciary or pursuant to a reorganization, restructuring or recapitalization of Ford as well as a merger or similar corporate transaction involving Ford (each, a corporate transaction), provided that, in such corporate transaction, similarly situated warrantholders, if any, will be treated the same to the extent that the terms of such warrants and/or rights of such warrantholders are the same.
This amendment to PTE 2010-08 is effective as of December 31, 2009, except with respect to Section I(a)(7), which is effective as of June 25, 2010.
The Department invited all interested persons to submit written comments with respect to the notice of proposed exemption on or before May 5, 2011. During the comment period, the Department received 2 telephone inquiries and 2 written comments from participants and/or beneficiaries in the Ford VEBA Plan, which generally concerned the commenters' difficulties in understanding the notice of proposed exemption and/or raised issues outside the scope of the exemption. Furthermore, the Department received a written comment from IFS, the Independent Fiduciary and investment manager of the Ford Employer Security Sub-Account of the Ford Separate Retiree Account of the VEBA Trust, which supported the exemption and suggested two clarifications regarding the Summary of Facts and Representations (the Summary) in the notice of proposed exemption.
Following is a discussion of the aforementioned comment. Any capitalized terms herein not otherwise defined have the meanings ascribed to them in the Summary.
IFS's comment generally relates to (1) The number of financial advisers retained by IFS, and (2) the original prepayment terms of New Note B.
In its comment, IFS states that the Summary incorrectly implies that it retained financial advisors other than Sutter. As described on page 14076 of the proposed exemption, “[a]fter considerable negotiation, during which it consulted extensively with its legal counsel, Proskauer Rose LLP (Proskauer Rose), and its financial advisers, including Sutter Securities Incorporated (Sutter), IFS states that it entered into an agreement * * *” IFS clarifies that the only financial adviser that it engaged and consulted with was Sutter. Further, IFS notes that, in making a decision whether to enter into the Note Agreement, it did consider the views expressed by the leading investment banking firms with which it met, but none of those firms served as a financial adviser to IFS besides Sutter.
In response to these comments, the Department takes note of the foregoing clarifications and updates to the Summary.
IFS states that Summary does not accurately reflect the original prepayment terms of New Note B. As the Summary describes on page 14078 of the proposed exemption, “[b]y contrast, IFS was aware that the original terms of New Note B did not require any advance notice of Ford's intent to make a prepayment, nor did they require that any prepayment must be made in cash.” According to IFS, the original terms of New Note B did in fact require that any prepayments of New Note B were to be made in cash. IFS explains that Sections 2(c) and 2(e) of New Note B permitted Ford to elect to pay annual required principal installments in specific amounts on specific annual “Payment Dates” or, in certain cases with respect to a “Deferred Payment,” on specific “Installment Payment Dates” (in each case, as defined in New Note B) in either cash or Ford Common Stock. IFS states that amounts payable under Sections 2(c) and 2(e), described above, were the only payments under New Note B that could be made other than in cash. By contrast, IFS points out, Section 2(g) of New Note B required that prepayments of New Note B on the specified Payment Dates be made in cash, unlike the principal installments under Section 2(c) or 2(e). Furthermore, IFS states that Section 2(b) of New Note B required that all other payments of New Note B be made in cash.
In response to these comments, the Department takes note of the foregoing
After giving full consideration to the entire record, including the written comments, the Department has decided to grant this exemption amending PTE 2010-08, as described above. The complete application file is made available for public inspection in the Public Documents Room of the Employee Benefits Security Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption refer to the proposed amendment, published in the
Warren Blinder of the Department, telephone (202) 693-8553. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which among other things require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
Employee Benefits Security Administration, Labor.
Notice of proposed exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). This notice includes the following proposed exemptions: D-11608, Russell Trust Company; and D-11659, Pacific Capital Bancorp Amended and Restated Incentive and Investment and Salary Savings Plan
All interested persons are invited to submit written comments or requests for a hearing on the pending exemptions, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this
Comments and requests for a hearing should state: (1) The name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing. All written comments and requests for a hearing (at least three copies) should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attention: Application No.__, stated in each Notice of Proposed Exemption. Interested persons are also invited to submit comments and/or hearing requests to EBSA via e-mail or FAX. Any such comments or requests should be sent either by e-mail to:
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).
If the proposed exemption is granted—
(a) The restrictions of sections 406(a)(1)(A), (a)(1)(B), (a)(1)(D), 406(b)(1) and 406(b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), (c)(1)(B), (c)(1)(D), and (c)(1)(E) of the Code, shall not apply, between September 14, 2009 and September 10, 2010, inclusive, to an arrangement involving the following transactions:
(1) The extension of credit, through a revised capital support agreement, to certain employee benefit plans (the Plans) invested, directly or indirectly, in the Russell Securities Lending Short-Term Investment Fund (the SecLending Fund) by the Frank Russell Company (FRC), the parent company of RTC and a party in interest with respect to the Plans, in connection with the SecLending Fund's holding of certain notes (the Notes) issued by Lehman Brothers Holdings Inc. or its affiliates (the Revised SecLending Fund CSA);
(2) The extension of credit, through a revised capital support agreement, to certain Plans invested, directly or indirectly, in the RTC Russell Liquidity Fund (the Liquidity Fund) by FRC in connection with the Liquidity Fund's holding of the Notes (the Revised Liquidity Fund CSA);
(3) The provision of a revised guarantee to FRC by its parent company, the Northwest Mutual Life Insurance Company (NML), a party in interest with respect to the Plans, in order to ensure FRC's foregoing capital support obligation to the SecLending Fund (the Revised SecLending Fund Guarantee);
(4) The provision of a revised guarantee to FRC by NML in order to ensure FRC's foregoing capital support obligation to the Liquidity Fund (the Revised Liquidity Fund Guarantee);
(5) The accrual and periodic payment of certain supplemental yield contributions by FRC to the SecLending Fund (the SecLending Fund Supplemental Yield Contributions); and
(6) The accrual and periodic payment of certain supplemental yield contributions by FRC to the Liquidity Fund (the Liquidity Fund Supplemental Yield Contributions);
(b) The restrictions of sections 406(a)(1)(A), 406(b)(1) and (b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) and (E) of the Code shall not apply to the September 10, 2010 cash sale (the Sale) of all of the Notes held by both the SecLending Fund and the Liquidity Fund (taken together, the Funds) to FRC; provided that all of the conditions set forth below in Section II are satisfied.
(a) With respect to the arrangement involving (i) The Revised SecLending Fund CSA and the Revised Liquidity Fund CSA transactions (together, the Revised CSAs), (ii) the Revised SecLending Fund Guarantee and the Revised Liquidity Fund Guarantee transactions (together, the Revised Guarantees), and (iii) the SecLending Fund Supplemental Yield Contributions and the Liquidity Fund Supplemental Yield Contribution transactions (together, the Supplemental Yield Contributions):
(1) The decision to enter into each of these transactions was made on behalf of the Funds (and the employee benefit plans invested, directly or indirectly, in the Funds) by an independent fiduciary (the Independent Fiduciary), who reviewed their terms and conditions of each of the foregoing transactions and determined that they were protective of, and in the interest of, the Funds and the Plans investing therein;
(2) The foregoing transactions were entered into pursuant to written agreements that contained all of the relevant terms and conditions relating to such transactions; and
(3) The Funds did not pay any fees, commissions or other expenses in connection with the foregoing transactions;
(b) With respect to the Sale of the Notes by each Fund to FRC:
(1) The Sale was a one-time transaction for cash;
(2) In connection with the Sale, the applicable Fund received an amount which was equal to the greater of: (i) The market value of the Notes being sold on the date of the Sale; or (ii) the sum of the amortized cost of such Notes, plus any accrued but unpaid interest on such Notes through the earlier of the maturity date of the applicable Note or September 14, 2009, in each case calculated at the contract rate;
(3) The Funds did not pay any fees, commissions or other expenses in connection with the Sale;
(4) The decision to sell all of the Notes held by the Funds to FRC was made by an Independent Fiduciary, who determined that the Sale of the Notes was appropriate for, and in the best interests of, each of the Funds and the Plans invested, directly or indirectly, in the Funds, at the time of the Sale transaction;
(5) The Independent Fiduciary has taken all appropriate actions necessary to safeguard the interests of the Funds, and of the employee benefit plans invested, directly or indirectly, in the Funds, in connection with the transaction;
(6) If the exercise of any of FRC's rights, claims, or causes of action in connection with its ownership of the Notes results in recovering from the issuer of the Notes, or any third party, an aggregate amount that is in excess of the sum of: (i) The Sale price paid for the Notes by FRC; and (ii) interest on such Sale price paid from September 10, 2010 to September 14, 2010, inclusive, made by FRC to the Funds, then FRC will refund such excess amount promptly to the Fund (after deducting all reasonable expenses incurred in connection with the recovery);
(c) RTC and its affiliates, as applicable, maintain, or cause to be maintained, for a period of six (6) years from the date of any covered transaction such records as are necessary to enable the person described below in paragraph (d)(1), to determine whether the conditions of this exemption have been met, except that:
(1) No party in interest with respect to a plan which engages in the covered transaction, other than FRC, RTC and their affiliates, as applicable, shall be subject to a civil penalty under section 502(i) of the Act or the taxes imposed by section 4975(a) and (b) of the Code, if such records are not maintained, or not available for examination, as required, below, by paragraph (d)(1);
(2) A separate prohibited transaction shall not be considered to have occurred solely because due to circumstances beyond the control of FRC, RTC or their affiliates, as applicable, such records are lost or destroyed prior to the end of the six-year period.
(d)(1) Except as provided, below, in paragraph (d)(2), and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to, above, in paragraph (c) are unconditionally available at their customary location for examination during normal business hours by —
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service, or the Securities and Exchange Commission; or
(B) Any fiduciary of any plan that engages in the covered transaction, or any duly authorized employee or representative of such fiduciary; or
(C) Any employer of participants and beneficiaries and any employee organization whose members are covered by a plan that engages in the covered transaction, or any authorized employee or representative of these entities; or
(D) Any participant or beneficiary of a plan that engages in the covered transaction, or duly authorized employee or representative of such participant or beneficiary;
(2) None of the persons described, above, in paragraph (d)(1)(B)-(D) shall be authorized to examine trade secrets of FRC, RTC or their affiliates, or commercial or financial information which is privileged or confidential; and
(3) Should RTC refuse to disclose information on the basis that such information is exempt from disclosure, RTC shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
1. RTC is a trust company organized under the laws of the State of Washington that is subject to regulation by the Washington State Department of Financial Institutions. RTC provides a wide range of fiduciary and investment management services to a broad array of institutional clients, including employee benefit plans subject to the Act and the Code. RTC serves as discretionary trustee for several commingled employee benefit fund trusts. RTC has numerous affiliates and is a subsidiary of FRC, a Washington corporation. FRC, in turn, is a subsidiary of NML.
2. The Applicant represents that the SecLending Fund is a separate fund of the Russell Trust Company Commingled Employee Benefit Funds Trust (the Trust), a group trust that is exempt from federal income tax pursuant to Rev. Rul. 81-100. The SecLending Fund is used as an investment vehicle for cash collateral received in connection with securities lending activities. The Applicant also represents that, on all dates relevant to the requested exemption, the SecLending Fund had Plan investors who were subject to the Act and the Code. The Liquidity Fund (like its predecessor fund, the Russell Short-Term Investment Fund, or STIF Fund) is a cash sweep vehicle that does not engage in securities lending activities. The Applicant represents that, on all dates relevant to the requested exemption, the assets of both the Liquidity Fund and its predecessor, the STIF Fund, constituted “plan assets” subject to the Act because each of the foregoing funds were collective trust funds maintained by a bank, and included Plan investors who were subject to the Act and the Code. In this connection, the Applicant represents that, under 29 CFR section 2510.3-101(h)(1)(ii), when a plan acquires or holds an interest in such a common or collective fund of a bank, its assets are deemed to include an undivided interest in each of the underlying assets of such fund.
Each of the Funds is bank-maintained for purposes of the Act, and RTC serves as a discretionary trustee for each Fund. The Funds are short-term investment funds that seek to maintain a constant net asset value, or “NAV,” equal to $1.00 per unit. RTC has investment discretion with respect to the assets of the Funds, and makes all determinations with respect to the purchase, sale, and holding of the assets by the Funds (within the investment parameters established for each Fund).
3. The Applicant represents that, as of September 15, 2008, numerous collective investment funds maintained by RTC or its affiliates (the RTC CIFs) were direct investors in the STIF Fund. Further, numerous Plans were indirectly invested in the SecLending Fund and the STIF Fund through their investment in the RTC CIFs. One Plan sponsored by RTC or its affiliates had a direct (rather than an indirect) investment in the STIF Fund.
4. On September 15, 2008, both the SecLending Fund and the STIF Fund held Notes issued by Lehman Brothers Holdings Inc. or its affiliates (the Lehman Issuers). The SecLending Fund acquired all of the Notes described in this proposed exemption between September of 2007 and March of 2008, while the STIF Fund acquired the Notes between September of 2007 and August of 2008. The decision both to acquire and to hold the Notes was made by RTC in its capacity as trustee and investment manager for each of the foregoing funds. Prior to investing in the Notes, the Applicant represents that RTC conducted an investigation of the potential investment, examining and considering the economic and other terms of the Notes. RTC represents that the investment in the Notes was consistent with the applicable investment policies and objectives of both the SecLending Fund and the STIF Fund. At the time they were acquired by the foregoing funds, the Notes were rated at least “A” or “A+” by both Moody's and S&P rating agencies. Based on its consideration of the relevant facts and circumstances, RTC determined that it was prudent and appropriate to acquire the Notes.
Moreover, the Department is not providing any opinion herein as to whether a particular category of investments or investment strategy would be considered prudent or in the best interests of a plan as required by section 404 of the Act. The determination of the prudence of a particular investment or investment course of action must be made by a plan fiduciary after appropriate consideration of those facts and circumstances that, given the scope of such fiduciary's investment duties, the fiduciary knows or should know are relevant to the particular investment or investment course of action involved, including a plan's potential exposure to losses and the role the investment or investment course of action plays in that portion of the plan's portfolio with respect to which the fiduciary has investment duties (see 29 CFR 2550.404a-1). The Department also notes that in order to act prudently in making investment decisions, a plan fiduciary must consider, among other factors, the availability, risks and potential return of alternative investments for the plan. Thus, a particular investment by a plan, which is selected in preference to other alternative investments, would generally not be prudent if such investment involves a greater risk to the security of a plan's assets than other comparable investments offering a similar return or result.
5. On September 15, 2008, each of the Lehman Issuers filed for Chapter 11 bankruptcy protection. As a consequence of the Lehman Issuers' bankruptcy filing, the market value of the Notes decreased substantially and the market for the Notes became relatively illiquid, with prices for actual trades being substantially lower than the SecLending Fund's and the STIF Fund's amortized cost for the Notes. In this connection, the Applicant determined that FRC should immediately provide capital support to both the SecLending Fund and the STIF Fund in an amount sufficient to maintain a constant NAV of
Accordingly, on September 15, 2008, FRC entered into separate capital support agreements with both the SecLending Fund (the Initial SecLending Fund CSA) and the STIF Fund (the STIF Fund CSA). The Applicant explains that, pursuant to these agreements (which, taken together, constitute the Initial CSAs), FRC contractually agreed to provide on-going capital support to both the SecLending Fund and the STIF Fund with respect to the Notes, up to the lesser of: (a) An agreed upon “maximum contribution amount” ($75,000,000 for the STIF Fund and $70,000,000 for the SecLending Fund), which amounts equaled the aggregate par value of the Notes held by the SecLending Fund and the STIF Fund, as applicable, as of September 15, 2008; (b) the difference between the amortized cost of such Notes and any proceeds received by either the SecLending Fund or the STIF Fund as a result of the subsequent sale or other disposition of the Notes by either fund; or (c) the minimum capital contribution amount necessary for each of the foregoing funds to maintain an NAV of $0.995 per unit, after taking into account the market value of the Notes held or disposed of by such fund. On the same date, NML contracted to guarantee FRC's capital support obligations to both the SecLending Fund (under the Initial SecLending Fund Guarantee) and the STIF Fund (under the STIF Fund Guarantee). The Applicant represents that, at all times relevant to this exemption, NML has maintained a rating of AAA by Standard & Poor's.
The Applicant represents that each of the Initial CSAs, as well as the Initial SecLending Fund Guarantee and the STIF Fund Guarantee (which, taken together, constitute the Initial Guarantees) were set to expire on September 15, 2009 unless, prior to that date, the SecLending Fund and the STIF Fund received either full cash repayment of the Notes or capital contributions from FRC and NML equal to the respective maximum contribution amounts pursuant to the Initial CSAs. Each of the Initial CSAs and Initial Guarantees also contained a repayment provision stipulating that, in the event that either the SecLending Fund or the STIF Fund received a capital contribution from FRC (or from NML, as guarantor) with respect to a Note and subsequently received additional payments from or on behalf of the Lehman Issuer in respect of the Note, such fund would repay to FRC (if NML had received contributions equal to its capital contribution) the lesser of: (i) The amount of such capital contribution; or (ii) the amount of such subsequent payments, provided that in no event would such repayment cause the respective fund's NAV per share to fall below $0.995 or such greater amount as required by any nationally-recognized statistical rating organization (NRSRO).
6. The Applicant represents that the decision to enter into the Initial CSAs was a fund-level decision made by RTC (similar to any decision to acquire or dispose of assets) that was intended to limit the downside risk for both the SecLending Fund and the STIF Fund with respect to the Notes, while preserving the upside potential for the foregoing funds, and that this determination did not represent any change to the funds' goals or investment strategies or any deviation from the funds' investment parameters. The Applicant further represents that the relative rights and interests of the Plans with respect to both the SecLending Fund and the STIF Fund (and the RTC CIFs having an interest in each fund) and the terms and conditions of any agreements between RTC and the Plans were not affected by this decision.
The Applicant maintains that the terms of the Initial CSAs and Initial Guarantees executed on September 14, 2008 to provide capital support to both the SecLending Fund and the STIF Fund constituted a lending of money or other extension of credit from a party in interest to an employee benefit plan that satisfied the conditions contained in a class exemption, Prohibited Transaction Exemption (PTE) 80-26; for this reason, the Applicant is not seeking an individual exemption for the period of time during which the Initial CSAs and Initial Guarantees were in force.
(a) No interest or other fee is charged to the plan, and no discount for payment in cash is relinquished by the plan, in connection with the loan or extension of credit;
(b) The proceeds of the loan or extension of credit are used only—
(1) For the payment of ordinary operating expenses of the plan, including the payment of benefits in accordance with the terms of the plan and periodic premiums under an insurance or annuity contract, or
(2) For a purpose incidental to the ordinary operation of the plan;
(c) The loan or extension of credit is unsecured;
(d) The loan or extension of credit is not directly or indirectly made by an employee benefit plan;
(e) The loan is not described in section 408(b)(3) of ERISA and the regulations promulgated thereunder (29 CFR 2550.408b-3) or section 4975(d)(3) of the Code and the regulations promulgated thereunder (26 CFR 54.4975-7(b)); and
(f) (1) Any loan described in section IV(b)(1) that is entered into on or after April 7, 2006 and that has a term of 60 days or longer must be made pursuant to a written loan agreement that contains all of the material terms of such loan.
(2) Any loan described in (b)(2) of this paragraph that is entered into for a term of 60 days or longer must be made pursuant to a written loan agreement that contains all of the material terms of such loan.
The Department offers no opinion herein as to whether each of the applicable conditions for exemptive relief contained in PTE 80-26 were satisfied in this particular instance.
7. On September 11, 2009, RTC reorganized the STIF Fund, and transferred all of the assets of the STIF, including the Notes held by the STIF Fund that were subject to the STIF Fund CSA, to the Liquidity Fund. In connection with this reorganization, the Liquidity Fund became the beneficiary of both FRC's capital support obligations under the STIF Fund CSA and of NML's guarantee of FRC's foregoing capital support obligation pursuant to the STIF Fund Guarantee.
8. As noted previously, the terms of both the Initial CSAs and the Initial Guarantees were set to expire on September 15, 2009. Expiration of the Initial CSAs, however, would have triggered a contractual obligation that the Funds liquidate the Notes in the market. The Applicant further represents that the Funds' liquidation of the Notes would, in turn, have triggered the payment of FRC's capital support obligations to the Funds. The Applicant states that the capital support payments required under the Initial CSAs represented the amount that would have been necessary to permit each Fund to maintain an NAV of $0.995 per unit. Accordingly, it is represented that, because both FRC and RTC did not believe that it would be in the best interest of either Fund to liquidate the Notes upon the expiration of the Initial CSAs on September 15, 2009, FRC and RTC determined to seek the amendment and extension of the Initial CSAs and the Initial Guarantees for one year, through an expiration date of September 15, 2010.
When, in September 2009, RTC determined that it would be necessary and in the best interest of the Funds to extend the terms of the Initial CSAs, RTC considered that such amendments would not qualify for relief in reliance upon PTE 80-26. In this connection, the Applicant represents that, had the Initial CSAs not included termination dates (
9. Pursuant to the Engagement Letter, the Independent Fiduciary was retained to represent the Funds through September 15, 2010. The Independent Fiduciary represents that it is both an “investment adviser” within the meaning of the Investment Advisers Act of 1940 and a “qualified professional asset manager” within the meaning of PTE 84-14. The Applicant further represents that the Independent Fiduciary has provided independent fiduciary services to clients since its incorporation in 1999.
Under the terms of the Engagement Letter, the Independent Fiduciary assumed responsibility for, among other things: (1) Negotiating, on behalf of each Fund, the terms of any amendments to the Initial CSAs on behalf of each Fund and determining that such terms were fair and reasonable to each Fund; (2) determining whether to enter into any amendments on behalf of each Fund and directing RTC to sign any such amendments; (3) monitoring the future capital support agreements on a going-forward basis, including negotiating the terms, and determining the fairness and reasonableness, of any modifications, extensions, or renewals thereof; and (4) determining on behalf of each Fund whether to liquidate the Notes, and determining the fairness and reasonableness of any proposed sale of the Notes to RTC or an affiliate of RTC. The Independent Fiduciary also assumed the same duties on behalf of the Funds with respect to the negotiation and approval of any extension to, and amendment of, the Initial Guarantees made by NML.
10. The Applicant represents that the Independent Fiduciary reviewed the terms of the Initial CSAs and Initial Guarantees in place at the time of its engagement, and the proceeds that each Fund would receive if these instruments expired as scheduled and were not extended. Upon reviewing the terms of the Initial CSAs, the Independent Fiduciary determined that it would be in the best interests of the investors in each Fund for FRC to make additional periodic cash contributions, or Supplemental Yield Contributions, to each Fund. By letter agreement dated September 14, 2009, FRC agreed, after negotiation with the Independent Fiduciary, to pay the Supplemental Yield Contributions to each Fund. The amount of such contributions would be determined by a mathematical formula. The first step of this formula would require computing the sum of (a) the amount of capital support that would have been required under the Initial CSAs as of September 14, 2009, had the Notes been sold by the Funds at the September 14, 2009 closing market price, and (b) the market value of the Notes as of September 14, 2009 based upon the closing market price on such date (the date prior to the date that accrual of such Supplemental Yield Contributions commenced). The sum resulting from the first step of the formula (
11. The following chart documents the monthly payment of accrued Supplemental Yield Contributions that were made by FRC to the Funds during the years 2009 and 2010, pursuant to the foregoing contractual arrangements:
12. In addition to requiring FRC to make Supplemental Yield Contributions to the Funds, the Independent Fiduciary (in a letter to RTC dated September 14, 2009) directed RTC and FRC to execute,
Further, the Independent Fiduciary determined it to be appropriate and in the best interest of the Funds to include a new provision in each of the Revised CSAs stipulating that, in the event the Funds determined to sell some or all of the Notes to RTC or an affiliate of RTC (through either a single transaction or series of transactions with each Fund), the purchase price for such Notes would be equal to the greater of (a) The market value of such Notes on the date of any such transaction, or (b) the sum of (i) the amortized cost of such Notes to be sold in such transaction, plus (ii) any accrued but unpaid interest through the earlier of the maturity date of the applicable Note or September 14, 2009 (the date prior to the date that accrual of the Supplemental Yield Contributions commenced) calculated at the contract rate.
It is represented that each of the Revised CSAs, as well as the Revised SecLending Fund Guarantee and the Revised Liquidity Fund Guarantee (which, taken together, constitute the Revised Guarantees) were set to expire on September 15, 2010 (unless, prior to that date, the Funds received either full cash payment for the Notes or capital contributions from FRC and NML equal to their respective maximum contribution amounts under each of the Revised CSAs). It is further represented that the Funds paid no fees or commissions in connection with the negotiation of either the Revised CSAs and Guarantees or the payment of the Supplemental Yield Contributions, nor for the Independent Fiduciary's services relating to such matters.
13. The Applicant represents that the Revised CSAs and the Revised Guarantees, as well as the Supplemental Yield Contributions, benefitted the investors in the Funds because the Independent Fiduciary determined that they placed the Funds in a position that was at least as favorable as that which would have been obtained had the Initial CSAs and Guarantees expired by their terms on September 15, 2009 and FRC and NML had made payments to the Funds in satisfaction of its capital support obligations. The Applicant also represents that the Revised CSAs and the Revised Guarantees provided the Funds the opportunity to seek recovery of their amortized cost or the full par value of the Notes, either through recovery from the Lehman Issuers, liquidation on the market or a potential sale to RTC or its affiliate. The Supplemental Yield Contributions were intended to ensure that the Funds remained in a position that was at least as favorable as if FRC had satisfied its capital support obligations upon expiration of the Initial CSAs on September 15, 2009 and the proceeds were invested in instruments providing a comparable yield. The Applicant also states that the Revised CSAs contained new provisions ensuring that the Funds would receive an aggregate amount not less than the Base Amount in connection with any sale of the Notes (or other event that would otherwise trigger FRC's capital support obligations). The foregoing arrangements were negotiated by and determined to be fair, reasonable and in the best interest of each of the Funds by the Independent Fiduciary.
14. At a meeting of its investment committee on September 2, 2010, the Independent Fiduciary discussed and approved the terms of a proposed sale of the Notes by the Funds to FRC. Pursuant to this determination, RTC and FRC negotiated the terms of the Sale of the Notes with the Independent Fiduciary. The Independent Fiduciary concluded that the Sale transaction would benefit the investors in the Funds because it would permit the Funds to recover an amount equal to or in excess of its amortized cost for each of the Notes and maintain an NAV per unit of at least $0.995, while also retaining a right to recover amounts received by FRC in excess of the sale price for the Notes. In addition, under the terms of the Sale negotiated by the Independent Fiduciary, each Fund would continue to earn interest under the Supplemental Yield Agreements until the settlement of the transaction, and would be entitled to additional amounts in the event that FRC subsequently recovered an amount greater than the sale price adjusted for interest accrued through the date of the refund to the relevant Fund.
15. In accordance with the Independent Fiduciary's direction, the Sale of all of the Notes from the Liquidity Fund to FRC was executed on September 10, 2010, and settled two business days later on September 14, 2010 for an aggregate price of $75,296,431; similarly, the Sale of all of the Notes from the SecLending Fund to FRC was executed on September 10, 2010, and settled two business days later on September 14, 2010 for an aggregate price of $70,436,820. The Applicant represents that the Sale resulted in an NAV for the Liquidity Fund of $1.0000 per unit and for the SecLending Fund of $0.9991 per unit.
16. The Applicant represents that, with the execution of the Sale on September 10, 2010, the terms of Revised CSAs, the Revised Guarantees, and the agreement concerning the accrual and payment of the Supplemental Yield Contributions each ceased to be effective as of that date. On September 14, 2010, the Sale transaction was settled when each of the Funds received the sale price of the Notes from FRC. The Applicant further represents that, while FRC's obligation to accrue the Supplemental Yield Contributions technically terminated on September 10, 2010, FRC and RTC (following discussions with the Independent Fiduciary) determined that these contributions would continue to accrue (and would be paid on) the date that the Sale settled. Accordingly, the final installment of the Supplemental Yield Contributions to the Funds was paid on the settlement date of September 14, 2010.
17. In summary, the Applicant represents that the transactions described herein satisfied the statutory criteria of section 408(a) of the Act and section 4975(c)(2) of the Code because: (a) The transactions were easily identifiable, have been completed, and will not require ongoing monitoring; (b) The Revised CSAs, the Revised Guarantees, and the Supplemental Yield Contributions were negotiated and documented, and were monitored by the Independent Fiduciary through their expiration; (c) The Sale was a one-time transaction for cash that was negotiated by the Independent Fiduciary, and neither of the Funds bore any brokerage commissions, fees or other expenses in connection with the Sale; (d) The transactions enabled the Funds, and the participating investors therein, including the Plans invested therein, to receive (i) Continued capital support from FRC with respect to the Notes under the Revised CSAs (guaranteed by NML) and (ii) periodic payment of the Supplemental Yield Contributions; (e) The Independent Fiduciary determined the foregoing arrangements placed the Funds in a position that was at least as favorable as the position they would have been in had the Initial CSAs and the Initial Guarantees expired by their terms; (f) The Revised CSAs and the Revised Guarantees provided the Funds the opportunity to seek recovery of their amortized cost, the full par value, or at least a greater portion of the par value of the Notes, either through recovery from the Lehman Issuers, liquidation on the market, or a potential Sale to RTC or its affiliates; and (g) the Independent Fiduciary determined that it would be in the best interests of the investors in each Fund for FRC to make Supplemental Yield Contributions to each Fund.
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR Part 2570, subpart B (55 FR 32836, 32847, August 10, 1990).
If the proposed exemption is granted, effective October 27, 2010, the restrictions of sections 406(a)(1)(A), 406(a)(1)(E), 406(a)(2), 406(b)(1), 406(b)(2), and 407(a)(1)(A) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) and 4975(c)(1)(E) of the Code,
(1) To the acquisition of certain rights (the Rights) by the Plan in connection with an offering (the Offering) of shares of the common stock (the Stock) in Pacific Capital Bancorp (Bancorp) by Bancorp, a party in interest with respect to the Plan, and
(2) To the holding of the Rights received by the Plan during the subscription period of the Offering; provided that the conditions as set forth in section II of this proposed exemption were satisfied for the duration of the acquisition and holding.
The relief provided in this exemption is conditioned upon adherence to the material facts and representations described, herein, and as set forth in the application file and upon compliance with the conditions, as set forth in this proposed exemption.
(1) The receipt of the Rights by the Plan occurred in connection with the Offering and was made available by Bancorp on the same terms to all shareholders of the Stock of Bancorp;
(2) The acquisition of the Rights by the Plan resulted from an independent act of Bancorp, as a corporate entity, and all holders of the Rights, including the Plan, were treated in the same manner with respect to the acquisition of such Rights;
(3) Each shareholder of the Stock, including the Plan, received the same proportionate number of Rights based on the number of shares of Stock of Bancorp held by such shareholder;
(4) The Board of Directors of Bancorp (the Board) decided that the Offering should be made available to all shareholders of the Stock, including the Plan, as record owner of the Stock held in the Plan on behalf of the accounts of the individual participants (the Invested Participants) all or a portion of whose accounts in the Plan are invested in the Stock, in accordance with provisions under such Plan for individually-directed investment of such accounts;
(5) The decision to exercise the Rights or to refrain from exercising the Rights was made by each of the Invested Participants in accordance with the provision under the Plan for individually-directed accounts; and
(6) No brokerage fees, commissions, subscription fees, or any other charges were paid by the Plan with respect to the Offering, and no brokerage fees, commissions, or other monies were paid by the Plan to any broker in connection with the exercise of the Rights.
1. The Plan is a defined contribution profit sharing plan. Bancorp is the sponsor of the Plan. The Plan is intended to satisfy the requirements under section 401(a), 401(k) and 401(m) of the Code. The Plan is a participant directed account plan intended to satisfy the requirements of section 404(c) of the Act.
As of August 30, 2010, the Plan had approximately 1,417 participants. The fair market value of the total assets of the Plan, as of August 30, 2010, was $64,324,228.
The Compensation & Benefits Committee (the Committee) became the fiduciary responsible for Plan matters on October 2010. The Committee is comprised of non-employee members of the Board of Bancorp. It is represented the members of the Committee satisfy the independence requirements of NASDAQ, the Code, and various banking laws and regulations. As a fiduciary with respect to the Plan, the Committee is a party in interest to the Plan, pursuant to section 3(14)(A) of the Act.
On December 1, 2007, the Charles Schwab Trust Company (Charles Schwab Trust), a California chartered non-depository trust company, became the directed trustee for the Plan. Charles Schwab Trust also serves as custodian for the Plan. As custodian, Charles Schwab Trust executes investment directions in accordance with participants' written or electronic instructions. In addition Charles Schwab Corporate and Retirement Services (CSC) is the broker for the Plan. As service providers to the Plan, Charles Schwab Trust and CSC are parties in interest to the Plan, pursuant to section 3(14)(B) of the Act.
2. The Plan offers to participants the following permitted investment options in which to invest all or a portion of such participants' account balances: (a) The Stock, (b) a variety of money market funds, (c) common collective trusts, (d) mutual funds, and (e) self-directed accounts. Charles Schwab Stable Value Fund is the common collective trust fund in which Plan assets are invested. Certain Plan assets are also invested in mutual funds managed by an affiliate of Charles Schwab Trust.
3. The application was filed on behalf of Bancorp, a bank holding company, located in Santa Barbara, California. Pacific Capital Bank, National Association (the Bank) is a wholly-owned subsidiary of Bancorp. The Bank is a full-service, state-chartered commercial bank located in California whose deposits are insured by the Federal Deposit Insurance Corporation. As of June 30, 2010, the Bank had $7.1 billion in assets. The Bank, as an employer any of whose employees are covered by the plan, is a party in interest with respect to the Plan, pursuant to section 3(14)(C) of the Act. Substantially all of the activities of Bancorp are conducted through the Bank. Bancorp, as the parent of the Bank, is a party in interest with respect to the Plan, pursuant to section 3(14)(E) of the Act.
4. The Stock of Bancorp is listed for quotation on the NASDAQ Global Select Market under the symbol PCBC. The total number of shares of Stock outstanding, as of August 18, 2010, was 47,406,579. During the period beginning on October 19, 2010 and ending on November 15, 2010, the Stock was trading on the NASDAQ at prices ranging between $0.73 and $0.42 per share.
The Stock is a “qualifying employer security,” as defined under section 407(d)(5) of the Act and 4975(e) of the Code.
5. On April 29, 2010, Bancorp and the Bank entered into an investment agreement with SB Acquisition Company LLC, a wholly-owned subsidiary of Ford Financial Fund, L.P. (the Investor) for the sale to the Investor of 225,000,000 shares of Stock at $0.20 per share and 455,000 shares of mandatorily convertible participating voting preferred stock at $1,000 per share. The aggregate consideration paid to Bancorp by the Investor for these securities was $500 million in cash. Before accounting for any issuance of Stock pursuant to the Offering, the Investor owned approximately 86 percent (86%) of the outstanding Stock.
As a condition of the investment agreement with the Investor, Bancorp agreed to commence the Offering, which is the subject of this proposed exemption, whereby shareholders of record would receive non-transferable rights to purchase a number of shares of
6. Under the terms of the Offering, all shareholders of the Stock of Bancorp, such as the Invested Participants, received at no charge the Rights to purchase, through the exercise of such Rights, the Stock being issued by Bancorp in connection with the Offering. With respect to the Rights, under the terms of the Offering, 15.335 Rights were issued for every share of the Stock held by each shareholder on August 30, 2010, (the Record Date). All Rights were rounded down to the nearest whole number for each shareholder. For example, an Invested Participant's account in the Plan that held 543 shares of Stock, as of the Record Date, would entitle such Invested Participant to 8,326 Rights (15.335 × 543 = 8,326.905 rounded down to 8,326), pursuant to the Offering, which in turn would permit an Invested Participant to purchase 8,326 shares of Stock.
It is represented that the Rights were not listed, traded or quoted on NASDAQ or on any other stock exchange or trading market. Further, the terms of the Offering stipulated that the Rights could not be sold, assigned or transferred.
7. The Rights could only be exercised in whole numbers. Upon exercise, each of the Rights permitted a shareholder of the Stock of Bancorp to purchase one (1) additional share of Stock at a subscription price of $0.20 per share. A shareholder had the right to choose to exercise some, all, or none of his Rights. The exercise of any of the Rights was irrevocable. It is represented that there were no over-subscription rights associated with the Offering. The Rights could be exercised beginning October 18, 2010, the date of the issuance of the prospectus describing the Offering. The Offering closed with respect to the exercise of the Rights on November 19, 2010, at 5 p.m. New York City time. Pursuant to the terms of the Offering all unexercised Rights expired and became worthless after the closing of the Offering.
8. It is represented that on the Record Date, the Plan was the record owner of 1,573,450 shares of Stock which were allocated to the individual accounts of the 1,417 Invested Participants. The aggregate fair market value of the assets of the Plan invested in shares of the Stock, on the Record Date, based on a closing price of $0.859 on that date was $1,351,593.55. The approximate percentage of the fair market value of the Plan's total assets invested in the Stock is 2.1 percent (2.1%). As of the Record Date, 1,573,450 shares of Stock constituted approximately 3.32 percent (3.32%) of the 47,406,579 shares of Stock outstanding.
Based on the ratio of 15.335 Rights for each share of Stock held, the Plan acquired 24,128,855 Rights as a result of the Offering. It is represented that the Rights held by the Plan for the accounts of Invested Participants were plan assets. It is represented that 11,751,048 shares of Stock were subscribed for by the Plan. Of the Rights received by the Plan on behalf of accounts of the Invested Participants, all Rights were either exercised or expired.
It is represented that the Committee recommended to the Board that it was in the best interest of the Invested Participants to provide such Invested Participants with an opportunity to participate in (and the ability to make the decision not to participate in) the Offering which would prevent dilution of such Interested Participants' interest in Bancorp from the exercise of the Rights by other shareholders of Bancorp. Accordingly, the Board after considering the Committee's recommendation concluded, as a matter of California Corporations law and as a matter of fairness, that the Rights should be made available to all shareholders of Bancorp, including the Plan, as record owner of the Stock. In this regard, the Plan holds title to the Stock on behalf of the accounts of the Invested Participants, in accordance with provisions under such Plan for individually-directed investment of such accounts. The Offering was approved by the Board on April 28, 2010, August 18, 2010, and August 27, 2011. It is represented that all members of the Board participated in each vote to approve the Offering and each vote was unanimously approved by the Board.
On the dates of approval, the Board was comprised of eleven (11) individuals, two (2) of whom are employees of Bancorp or a subsidiary. The following table identifies the members of the Board and the Committee and each member's respective ownership interests in Bancorp, as of August 27,
9. Enclosed with a form letter mailed to each participant in the Plan, on October 19, 2010, Bancorp provided a copy of the prospectus which described the Offering, a document providing frequently asked questions and answers regarding the Offering for Plan participants, an election form for Plan participants, and a return envelope addressed to BNY Mellon Shareowner Services (BMSS), the subscription agent.
10. In order to exercise the Rights, Invested Participants had to complete an election form, deliver such form to BMSS, the subscription agent, liquidate sufficient existing investments in the Plan in order to generate the full subscription price in cash, transfer such cash to the Schwab Value Advantage Money Institutional Prime Shares Fund by the close of business on the fourth (4th) business day (November 15, 2010) prior to the expiration of the Offering on November 19, 2010. It is represented that the date, November 15, 2010, provided the third party administrator with four (4) days within which to com